Bill Text: NY S01180 | 2011-2012 | General Assembly | Introduced
Bill Title: Relates to the siting of major electric generating facilities; relates to power plant emissions and performance standards.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2012-01-04 - REFERRED TO ENERGY AND TELECOMMUNICATIONS [S01180 Detail]
Download: New_York-2011-S01180-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
1180
2011-2012 Regular Sessions
I N S E N A T E
January 5, 2011
___________
Introduced by Sen. PARKER -- read twice and ordered printed, and when
printed to be committed to the Committee on Energy and Telecommuni-
cations
AN ACT to amend the public service law, in relation to the siting of
major electric generating facilities; to amend the public authorities
law, in relation to making technical corrections thereto; to amend the
state finance law, in relation to establishing an intervenor account;
to amend the environmental conservation law, in relation to power
plant emissions and performance standards; and providing for the
repeal of such provisions upon expiration thereof
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. The public service law is amended by adding a new article
2 10 to read as follows:
3 ARTICLE 10
4 SITING OF MAJOR ELECTRIC GENERATING FACILITIES
5 SECTION 160. DEFINITIONS.
6 161. GENERAL PROVISIONS RELATING TO THE BOARD.
7 162. BOARD CERTIFICATE.
8 163. PRE-APPLICATION PROCEDURES.
9 164. APPLICATION FOR A CERTIFICATE.
10 165. HEARING SCHEDULE.
11 166. PARTIES TO A CERTIFICATION PROCEEDING.
12 167. CONDUCT OF HEARING.
13 168. BOARD DECISIONS.
14 169. OPINION TO BE ISSUED WITH DECISION.
15 170. REHEARING AND JUDICIAL REVIEW.
16 171. JURISDICTION OF COURTS.
17 172. POWERS OF MUNICIPALITIES AND STATE AGENCIES.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD02145-01-1
S. 1180 2
1 173. APPLICABILITY TO PUBLIC AUTHORITIES.
2 S 160. DEFINITIONS. WHERE USED IN THIS ARTICLE, THE FOLLOWING TERMS,
3 UNLESS THE CONTEXT OTHERWISE REQUIRES, SHALL HAVE THE FOLLOWING MEAN-
4 INGS:
5 1. "MUNICIPALITY" MEANS A COUNTY, CITY, TOWN OR VILLAGE LOCATED IN
6 THIS STATE.
7 2. "MAJOR ELECTRIC GENERATING FACILITY" MEANS AN ELECTRIC GENERATING
8 FACILITY WITH A NAMEPLATE GENERATING CAPACITY OF TWENTY THOUSAND KILO-
9 WATTS OR MORE, INCLUDING INTERCONNECTION ELECTRIC TRANSMISSION LINES AND
10 FUEL GAS TRANSMISSION LINES THAT ARE NOT SUBJECT TO REVIEW UNDER ARTICLE
11 SEVEN OF THIS CHAPTER. FOR PURPOSES OF THIS ARTICLE, MAJOR ELECTRIC
12 GENERATING FACILITY SHALL INCLUDE ANY COMBINATION OF POWER PLANTS WHICH
13 EXCEEDS TWENTY THOUSAND KILOWATTS OF NAMEPLATE GENERATING CAPACITY,
14 BUILT OR CAUSED TO BE BUILT BY A SINGLE PERSON WITHIN A TWELVE MONTH
15 PERIOD, WITHIN A SINGLE COUNTY, OR WITHIN ONE-HALF MILE OR LESS OF EACH
16 OTHER, OR WITHIN THE SAME FEDERALLY DESIGNATED CLEAN AIR ACT NONATTAIN-
17 MENT ZONE.
18 3. "PERSON" MEANS ANY INDIVIDUAL, CORPORATION, PUBLIC BENEFIT CORPO-
19 RATION, POLITICAL SUBDIVISION, GOVERNMENTAL AGENCY, MUNICIPALITY, PART-
20 NERSHIP, CO-OPERATIVE ASSOCIATION, TRUST OR ESTATE.
21 4. "BOARD" MEANS THE NEW YORK STATE BOARD ON ELECTRIC GENERATION
22 SITING AND THE ENVIRONMENT, WHICH SHALL BE IN THE DEPARTMENT AND CONSIST
23 OF SEVEN PERSONS: THE CHAIR OF THE DEPARTMENT, WHO SHALL SERVE AS CHAIR
24 OF THE BOARD; THE COMMISSIONER OF ENVIRONMENTAL CONSERVATION; THE
25 COMMISSIONER OF HEALTH; THE CHAIR OF THE NEW YORK STATE ENERGY RESEARCH
26 AND DEVELOPMENT AUTHORITY; THE COMMISSIONER OF ECONOMIC DEVELOPMENT AND
27 TWO AD HOC PUBLIC MEMBERS. ONE AD HOC PUBLIC MEMBER SHALL BE APPOINTED
28 BY THE CHIEF EXECUTIVE OFFICER REPRESENTING THE MUNICIPALITY IN WHICH
29 THE FACILITY IS PROPOSED, OR, IN THE CITY OF NEW YORK, BY THE CHAIR-
30 PERSON OF THE COMMUNITY BOARD OF THE COMMUNITY DISTRICT IN WHICH THE
31 FACILITY IS PROPOSED, AND WHICH MEMBER SHALL BE A RESIDENT OF SUCH MUNI-
32 CIPALITY OR SUCH COMMUNITY DISTRICT IN WHICH THE FACILITY IS PROPOSED.
33 THE SECOND AD HOC PUBLIC MEMBER SHALL BE APPOINTED BY THE CHIEF EXECU-
34 TIVE OFFICER OF THE COUNTY IN WHICH THE FACILITY IS PROPOSED, OR IN THE
35 CITY OF NEW YORK, BY THE BOROUGH PRESIDENT OF THE COUNTY IN WHICH THE
36 FACILITY IS PROPOSED, AND WHICH MEMBER SHALL BE A RESIDENT OF SUCH COUN-
37 TY OR SUCH BOROUGH. THE TERM OF THE AD HOC PUBLIC MEMBERS SHALL CONTIN-
38 UE UNTIL A FINAL DETERMINATION IS MADE IN THE PARTICULAR PROCEEDING FOR
39 WHICH THEY WERE APPOINTED.
40 5. "CERTIFICATE" MEANS A CERTIFICATE OF ENVIRONMENTAL COMPATIBILITY
41 AND PUBLIC NEED AUTHORIZING THE CONSTRUCTION OF A MAJOR ELECTRIC GENER-
42 ATING FACILITY ISSUED BY THE BOARD PURSUANT TO THIS ARTICLE.
43 6. "FUEL WASTE BYPRODUCT" SHALL MEAN WASTE OR COMBINATION OF WASTES
44 PRODUCED AS A BYPRODUCT OF GENERATING ELECTRICITY FROM A MAJOR ELECTRIC
45 GENERATING FACILITY IN AN AMOUNT WHICH REQUIRES STORAGE OR DISPOSAL AND,
46 BECAUSE OF ITS QUANTITY, CONCENTRATION, OR PHYSICAL, CHEMICAL OR OTHER
47 CHARACTERISTICS, MAY POSE A SUBSTANTIAL PRESENT OR POTENTIAL HAZARD TO
48 HUMAN HEALTH OR THE ENVIRONMENT.
49 7. "NAMEPLATE" MEANS A MANUFACTURER'S DESIGNATION, GENERALLY AS
50 AFFIXED TO THE GENERATOR UNIT, WHICH STATES THE TOTAL OUTPUT OF SUCH
51 GENERATING FACILITY AS ORIGINALLY DESIGNED ACCORDING TO THE MANUFACTUR-
52 ER'S ORIGINAL DESIGN SPECIFICATIONS.
53 8. "PUBLIC INFORMATION COORDINATOR" MEANS AN OFFICE CREATED WITHIN THE
54 DEPARTMENT WHICH SHALL ASSIST AND ADVISE INTERESTED PARTIES AND MEMBERS
55 OF THE PUBLIC IN PARTICIPATING IN THE SITING AND CERTIFICATION OF MAJOR
56 ELECTRIC GENERATING FACILITIES. THE DUTIES OF THE PUBLIC INFORMATION
S. 1180 3
1 OFFICER SHALL INCLUDE, BUT NOT BE LIMITED TO: (A) IMPLEMENTING MEASURES
2 THAT ASSURE FULL AND ADEQUATE PUBLIC PARTICIPATION IN MATTERS BEFORE THE
3 BOARD; (B) RESPONDING TO INQUIRIES FROM THE PUBLIC FOR INFORMATION ON
4 HOW TO PARTICIPATE IN MATTERS BEFORE THE BOARD; (C) ASSISTING THE PUBLIC
5 IN REQUESTING RECORDS RELATING TO MATTERS BEFORE THE BOARD; (D) ENSURING
6 ALL INTERESTED PERSONS ARE PROVIDED WITH A REASONABLE OPPORTUNITY TO
7 PARTICIPATE AT PUBLIC MEETINGS RELATING TO MATTERS BEFORE THE BOARD; (E)
8 ENSURING THAT ALL NECESSARY OR REQUIRED DOCUMENTS ARE AVAILABLE FOR
9 PUBLIC ACCESS ON THE DEPARTMENT'S WEBSITE WITHIN ANY TIME PERIODS SPECI-
10 FIED WITHIN THIS ARTICLE; AND (F) ANY OTHER DUTIES AS MAY BE PRESCRIBED
11 BY THE BOARD, AFTER CONSULTATION WITH THE DEPARTMENT.
12 9. "APPROVED PROCUREMENT PROCESS" MEANS ANY ELECTRIC CAPACITY PROCURE-
13 MENT PROCESS APPROVED BY THE COMMISSION AND CONSISTENT WITH THE STATE
14 ENERGY PLAN ADOPTED PURSUANT TO ARTICLE SIX OF THE ENERGY LAW.
15 S 161. GENERAL PROVISIONS RELATING TO THE BOARD. UPON RECEIPT OF A
16 PRE-APPLICATION PRELIMINARY SCOPING STATEMENT UNDER THIS ARTICLE, THE
17 CHAIR SHALL PROMPTLY NOTIFY THE GOVERNOR; THE CHIEF EXECUTIVE OFFICER
18 REPRESENTING THE MUNICIPALITY IN WHICH THE FACILITY IS PROPOSED, OR, IN
19 THE CITY OF NEW YORK, THE CHAIRPERSON OF THE COMMUNITY BOARD OF THE
20 COMMUNITY DISTRICT IN WHICH THE FACILITY IS PROPOSED; AND THE CHIEF
21 EXECUTIVE OFFICER OF THE COUNTY IN WHICH THE FACILITY IS PROPOSED, OR IN
22 THE CITY OF NEW YORK, THE BOROUGH PRESIDENT OF THE COUNTY IN WHICH THE
23 FACILITY IS PROPOSED. WITHIN THIRTY DAYS OF SUCH NOTIFICATION THE CHIEF
24 EXECUTIVE OFFICERS SHALL APPOINT THE AD HOC PUBLIC MEMBERS. FOUR OF THE
25 SEVEN PERSONS ON THE BOARD SHALL CONSTITUTE A QUORUM FOR THE TRANSACTION
26 OF ANY BUSINESS OF THE BOARD, AND THE DECISION OF FOUR MEMBERS OF THE
27 BOARD SHALL CONSTITUTE ACTION OF THE BOARD. IN THE EVENT THAT ONE OR
28 BOTH OF THE AD HOC PUBLIC MEMBERS HAVE NOT BEEN APPOINTED WITHIN THIRTY
29 DAYS, A MAJORITY OF PERSONS NAMED TO THE BOARD SHALL CONSTITUTE A
30 QUORUM. THE BOARD, EXCLUSIVE OF THE AD HOC PUBLIC MEMBERS, SHALL HAVE
31 THE POWER TO ADOPT RULES AND REGULATIONS RELATING TO THE PROCEDURES TO
32 BE USED IN CERTIFYING FACILITIES UNDER THE PROVISIONS OF THIS ARTICLE,
33 SUBJECT TO PROCEDURES ESTABLISHED BY THE STATE ADMINISTRATIVE PROCEDURE
34 ACT, INCLUDING THE SUSPENSION OR REVOCATION THEREOF, AND SHALL FURTHER
35 HAVE THE POWER TO SEEK DELEGATION FROM THE FEDERAL GOVERNMENT PURSUANT
36 TO FEDERAL REGULATORY PROGRAMS APPLICABLE TO THE SITING OF MAJOR ELEC-
37 TRIC GENERATING FACILITIES. THE CHAIR, AFTER CONSULTATION WITH THE OTHER
38 MEMBERS OF THE BOARD EXCLUSIVE OF THE AD HOC PUBLIC MEMBERS, SHALL HAVE
39 EXCLUSIVE JURISDICTION TO ISSUE DECLARATORY RULINGS REGARDING THE APPLI-
40 CABILITY OF, OR ANY OTHER QUESTION UNDER, THIS ARTICLE AND RULES AND
41 REGULATIONS ADOPTED HEREUNDER. REGULATIONS ADOPTED BY THE BOARD MAY
42 PROVIDE FOR RENEWAL APPLICATIONS FOR POLLUTANT CONTROL PERMITS TO BE
43 SUBMITTED TO AND ACTED UPON BY THE DEPARTMENT OF ENVIRONMENTAL CONSERVA-
44 TION FOLLOWING COMMERCIAL OPERATION OF A CERTIFIED FACILITY.
45 IN ADDITION TO THE REQUIREMENTS OF THE PUBLIC OFFICERS LAW, NO PERSON
46 SHALL BE ELIGIBLE TO BE AN APPOINTEE OF THE GOVERNOR TO THE BOARD WHO
47 HOLDS ANOTHER STATE OR LOCAL OFFICE. NO MEMBER OF THE BOARD MAY RETAIN
48 OR HOLD ANY OFFICIAL RELATION TO, OR ANY SECURITIES OF AN ELECTRIC UTIL-
49 ITY CORPORATION OPERATING OR PROPOSED FOR OPERATION IN THE STATE, ANY
50 AFFILIATE THEREOF OR ANY OTHER COMPANY, FIRM, PARTNERSHIP, CORPORATION,
51 ASSOCIATION OR JOINT-STOCK ASSOCIATION THAT MAY APPEAR BEFORE THE BOARD,
52 NOR SHALL EITHER OF THE APPOINTEES HAVE BEEN A DIRECTOR, OFFICER OR,
53 WITHIN THE PREVIOUS TEN YEARS, AN EMPLOYEE THEREOF. THE AD HOC PUBLIC
54 MEMBERS OF THE BOARD SHALL RECEIVE THE SUM OF TWO HUNDRED DOLLARS FOR
55 EACH DAY IN WHICH THEY ARE ACTUALLY ENGAGED IN THE PERFORMANCE OF THEIR
56 DUTIES HEREIN PLUS ACTUAL AND NECESSARY EXPENSES INCURRED BY THEM IN THE
S. 1180 4
1 PERFORMANCE OF SUCH DUTIES. THE CHAIR SHALL PROVIDE SUCH PERSONNEL,
2 HEARING EXAMINERS, SUBORDINATES, EMPLOYEES AND SUCH LEGAL, TECHNOLOG-
3 ICAL, SCIENTIFIC, ENGINEERING AND OTHER SERVICES AND SUCH MEETING ROOMS,
4 HEARING ROOMS AND OTHER FACILITIES AS MAY BE REQUIRED IN PROCEEDINGS
5 UNDER THIS ARTICLE. THE BOARD MAY PROVIDE FOR ITS OWN REPRESENTATION AND
6 APPEARANCE IN ALL ACTIONS AND PROCEEDINGS INVOLVING ANY QUESTION UNDER
7 THIS ARTICLE. THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION SHALL PROVIDE
8 ASSOCIATE HEARING EXAMINERS. EACH MEMBER OF THE BOARD OTHER THAN THE AD
9 HOC PUBLIC MEMBERS MAY DESIGNATE AN ALTERNATE TO SERVE INSTEAD OF THE
10 MEMBER WITH RESPECT TO ALL PROCEEDINGS PURSUANT TO THIS ARTICLE. SUCH
11 DESIGNATION SHALL BE IN WRITING AND FILED WITH THE CHAIR.
12 S 162. BOARD CERTIFICATE. 1. NO PERSON SHALL COMMENCE THE PREPARATION
13 OF A SITE FOR, OR BEGIN THE CONSTRUCTION OF A MAJOR ELECTRIC GENERATING
14 FACILITY IN THE STATE, OR INCREASE THE CAPACITY OF AN EXISTING ELECTRIC
15 GENERATING FACILITY BY MORE THAN TWENTY THOUSAND KILOWATTS WITHOUT
16 HAVING FIRST OBTAINED A CERTIFICATE ISSUED WITH RESPECT TO SUCH FACILITY
17 BY THE BOARD. ANY SUCH FACILITY WITH RESPECT TO WHICH A CERTIFICATE IS
18 ISSUED SHALL NOT THEREAFTER BE BUILT, MAINTAINED OR OPERATED EXCEPT IN
19 CONFORMITY WITH SUCH CERTIFICATE AND ANY TERMS, LIMITATIONS OR CONDI-
20 TIONS CONTAINED THEREIN, PROVIDED THAT NOTHING HEREIN SHALL EXEMPT SUCH
21 FACILITY FROM COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS AND REGU-
22 LATIONS EXCEPT AS OTHERWISE PROVIDED IN THIS ARTICLE. LOCAL LAWS AND
23 REGULATIONS SHALL APPLY AS OF THE DATE OF THE FILING OF THE PRE-APPLICA-
24 TION PRELIMINARY SCOPING STATEMENT, EXCEPT TO THE EXTENT THAT ANY LOCAL
25 LAWS AND REGULATIONS ARE MODIFIED TO EFFECTUATE LAND USE PLANS OR
26 PROPOSALS INITIATED PRIOR TO THE DATE OF THE FILING OF THE PRE-APPLICA-
27 TION PRELIMINARY SCOPING STATEMENT. A CERTIFICATE FOR A MAJOR ELECTRIC
28 GENERATING FACILITY, OR AN INCREASE IN THE CAPACITY OF AN EXISTING ELEC-
29 TRIC GENERATING FACILITY BY MORE THAN TWENTY THOUSAND KILOWATTS, MAY BE
30 ISSUED ONLY PURSUANT TO THIS ARTICLE.
31 2. A CERTIFICATE MAY BE TRANSFERRED, SUBJECT TO THE APPROVAL OF THE
32 BOARD, TO A PERSON WHO AGREES TO COMPLY WITH THE TERMS, LIMITATIONS AND
33 CONDITIONS CONTAINED THEREIN.
34 3. A CERTIFICATE ISSUED UNDER THIS ARTICLE MAY BE AMENDED PURSUANT TO
35 THIS SECTION.
36 4. THIS ARTICLE SHALL NOT APPLY: (A) TO A MAJOR ELECTRIC GENERATING
37 FACILITY OVER WHICH ANY AGENCY OR DEPARTMENT OF THE FEDERAL GOVERNMENT
38 HAS EXCLUSIVE JURISDICTION, OR HAS JURISDICTION CONCURRENT WITH THAT OF
39 THE STATE AND HAS EXERCISED SUCH JURISDICTION TO THE EXCLUSION OF REGU-
40 LATION OF THE FACILITY BY THE STATE;
41 (B) TO NORMAL REPAIRS, REPLACEMENTS, MODIFICATIONS AND IMPROVEMENTS OF
42 A MAJOR ELECTRIC GENERATING FACILITY, WHENEVER BUILT, WHICH DO NOT
43 CONSTITUTE A VIOLATION OF ANY CERTIFICATE ISSUED UNDER THIS ARTICLE AND
44 WHICH DO NOT RESULT IN AN INCREASE IN CAPACITY OF THE FACILITY OF MORE
45 THAN TWENTY THOUSAND KILOWATTS;
46 (C) TO A MAJOR ELECTRIC GENERATING FACILITY (I) CONSTRUCTED ON LANDS
47 DEDICATED TO INDUSTRIAL USES, (II) THE OUTPUT OF WHICH SHALL BE USED
48 SOLELY FOR INDUSTRIAL PURPOSES, ON THE PREMISES, AND (III) THE GENERAT-
49 ING CAPACITY OF WHICH DOES NOT EXCEED TWO HUNDRED THOUSAND KILOWATTS; OR
50 (D) TO A MAJOR ELECTRIC GENERATING FACILITY IF, ON OR BEFORE THE
51 EFFECTIVE DATE OF THIS ARTICLE, AN APPLICATION HAS BEEN MADE FOR A
52 LICENSE, PERMIT, CERTIFICATE, CONSENT OR APPROVAL FROM ANY FEDERAL,
53 STATE OR LOCAL COMMISSION, AGENCY, BOARD OR REGULATORY BODY, IN WHICH
54 APPLICATION THE LOCATION OF THE MAJOR ELECTRIC GENERATING FACILITY HAS
55 BEEN DESIGNATED BY THE APPLICANT; OR IF THE FACILITY IS UNDER
56 CONSTRUCTION AT SUCH TIME.
S. 1180 5
1 5. ANY PERSON INTENDING TO CONSTRUCT A MAJOR ELECTRIC GENERATING
2 FACILITY EXCLUDED FROM THIS ARTICLE PURSUANT TO PARAGRAPH (B), (C), OR
3 (D) OF SUBDIVISION FOUR OF THIS SECTION MAY ELECT TO BECOME SUBJECT TO
4 THE PROVISIONS OF THIS ARTICLE BY DELIVERING NOTICE OF SUCH ELECTION TO
5 THE CHAIR OF THE BOARD. THIS ARTICLE SHALL THEREAFTER APPLY TO EACH
6 ELECTRIC GENERATING FACILITY IDENTIFIED IN SUCH NOTICE FROM THE DATE OF
7 ITS RECEIPT BY THE CHAIR OF THE BOARD. FOR THE PURPOSES OF THIS ARTICLE,
8 EACH SUCH FACILITY SHALL BE TREATED IN THE SAME MANNER AS A MAJOR ELEC-
9 TRIC GENERATING FACILITY AS DEFINED IN THIS ARTICLE.
10 S 163. PRE-APPLICATION PROCEDURES. 1. ANY PERSON PROPOSING TO SUBMIT
11 AN APPLICATION FOR A CERTIFICATE SHALL FILE WITH THE CHAIR OF THE BOARD
12 A PRELIMINARY SCOPING STATEMENT CONTAINING A BRIEF DISCUSSION, ON THE
13 BASIS OF AVAILABLE INFORMATION, OF THE FOLLOWING ITEMS:
14 (A) DESCRIPTION OF THE PROPOSED FACILITY AND ITS ENVIRONMENTAL
15 SETTING;
16 (B) POTENTIAL ENVIRONMENTAL AND HEALTH IMPACTS FROM THE INCREMENTAL
17 INCREASE IN POLLUTION RESULTING FROM THE CONSTRUCTION AND OPERATION OF
18 THE PROPOSED FACILITY;
19 (C) PROPOSED STUDIES OR PROGRAM OF STUDIES DESIGNED TO EVALUATE POTEN-
20 TIAL ENVIRONMENTAL AND HEALTH IMPACTS;
21 (D) MEASURES PROPOSED TO MINIMIZE ENVIRONMENTAL IMPACTS; AND
22 (E) WHERE THE PROPOSED FACILITY INTENDS TO USE PETROLEUM OR OTHER
23 BACK-UP FUEL FOR GENERATING ELECTRICITY, A DISCUSSION AND/OR STUDY OF
24 THE SUFFICIENCY OF THE PROPOSED ON-SITE FUEL STORAGE CAPACITY AND SUPPLY
25 INCLUDING AN ANALYSIS OF THE POTENTIAL IMPACT OF UTILIZING THE BACK-UP
26 FUEL UPON THE FUEL SUPPLY AND DELIVERY INDUSTRIES; AND
27 (F) ANY OTHER INFORMATION THAT MAY BE RELEVANT OR THAT THE BOARD MAY
28 REQUIRE.
29 2. SUCH PERSON SHALL SERVE COPIES OF THE PRELIMINARY SCOPING STATEMENT
30 ON PERSONS ENUMERATED IN PARAGRAPH (A) OF SUBDIVISION TWO OF SECTION ONE
31 HUNDRED SIXTY-FOUR OF THIS ARTICLE AND PROVIDE NOTICE OF SUCH STATEMENT
32 AS PROVIDED IN PARAGRAPH (B) OF SUCH SUBDIVISION IN PLAIN LANGUAGE, IN
33 ENGLISH AND IN ANY OTHER LANGUAGE SPOKEN AS DETERMINED BY THE BOARD BY A
34 SIGNIFICANT PORTION OF THE POPULATION IN THE COMMUNITY, THAT DESCRIBES
35 THE PROPOSED FACILITY AND ITS LOCATION, THE RANGE OF POTENTIAL ENVIRON-
36 MENTAL AND HEALTH IMPACTS OF EACH POLLUTANT, THE APPLICATION AND REVIEW
37 PROCESS, AND A CONTACT PERSON, WITH PHONE NUMBER AND ADDRESS, FROM WHOM
38 INFORMATION WILL BE AVAILABLE AS THE APPLICATION PROCEEDS.
39 3. TO FACILITATE THE PRE-APPLICATION AND APPLICATION PROCESSES AND
40 ENABLE CITIZENS TO PARTICIPATE IN DECISIONS THAT AFFECT THEIR HEALTH AND
41 SAFETY AND THE ENVIRONMENT, THE DEPARTMENT AND SUCH PERSON SHALL PROVIDE
42 OPPORTUNITIES FOR CITIZEN INVOLVEMENT. SUCH OPPORTUNITIES SHALL ENCOUR-
43 AGE CONSULTATION WITH THE PUBLIC EARLY IN THE PRE-APPLICATION AND APPLI-
44 CATION PROCESSES, ESPECIALLY BEFORE ANY PARTIES ENTER A STIPULATION
45 PURSUANT TO SUBDIVISION FOUR OF THIS SECTION. THE PRIMARY GOALS OF THE
46 CITIZEN PARTICIPATION PROCESS SHALL BE TO FACILITATE COMMUNICATION
47 BETWEEN THE APPLICANT AND INTERESTED OR AFFECTED PERSONS. THE PROCESS
48 SHALL FOSTER THE ACTIVE INVOLVEMENT OF THE INTERESTED OR AFFECTED
49 PERSONS.
50 4. (A) EACH PRE-APPLICATION PRELIMINARY SCOPING STATEMENT SHALL BE
51 ACCOMPANIED BY A FEE IN AN AMOUNT EQUAL TO TWO HUNDRED FIFTY DOLLARS FOR
52 EACH THOUSAND KILOWATTS OF GENERATING CAPACITY OF THE SUBJECT FACILITY,
53 BUT NO MORE THAN ONE HUNDRED THOUSAND DOLLARS, TO BE DEPOSITED IN THE
54 INTERVENOR ACCOUNT ESTABLISHED PURSUANT TO SECTION NINETY-SEVEN-KKKK OF
55 THE STATE FINANCE LAW, TO BE DISBURSED AT THE HEARING EXAMINER'S DIREC-
56 TION TO DEFRAY PRE-APPLICATION EXPENSES INCURRED BY MUNICIPAL AND OTHER
S. 1180 6
1 INTERESTED PARTIES (EXCEPT FOR A MUNICIPALITY SUBMITTING THE PRE-APPLI-
2 CATION SCOPING STATEMENT) FOR EXPERT WITNESS, CONSULTANT, ADMINISTRATIVE
3 AND LEGAL FEES. IF AT ANY TIME SUBSEQUENT TO THE FILING OF THE PRE-AP-
4 PLICATION THE PRE-APPLICATION IS SUBSTANTIALLY MODIFIED OR REVISED, THE
5 BOARD MAY REQUIRE AN ADDITIONAL PRE-APPLICATION INTERVENOR FEE IN AN
6 AMOUNT NOT TO EXCEED TWENTY-FIVE THOUSAND DOLLARS. ANY MONEYS REMAINING
7 IN THE INTERVENOR ACCOUNT UPON THE SUBMISSION OF AN APPLICATION FOR A
8 CERTIFICATE SHALL BE MADE AVAILABLE TO INTERVENORS ACCORDING TO PARA-
9 GRAPH (A) OF SUBDIVISION SIX OF SECTION ONE HUNDRED SIXTY-FOUR OF THIS
10 ARTICLE.
11 (B) PRE-APPLICATION DISBURSEMENTS FROM THE INTERVENOR ACCOUNT SHALL BE
12 MADE IN ACCORDANCE WITH RULES AND REGULATIONS ESTABLISHED PURSUANT TO
13 PARAGRAPH (B) OF SUBDIVISION SIX OF SECTION ONE HUNDRED SIXTY-FOUR OF
14 THIS ARTICLE WHICH RULES SHALL PROVIDE FOR AN EXPEDITED PRE-APPLICATION
15 DISBURSEMENT SCHEDULE TO ASSURE EARLY AND MEANINGFUL PUBLIC INVOLVEMENT,
16 WITH AT LEAST ONE-HALF OF PRE-APPLICATION INTERVENOR FUNDS BECOMING
17 AVAILABLE THROUGH AN APPLICATION PROCESS WITHIN SIXTY DAYS OF THE FILING
18 OF A PRE-APPLICATION PRELIMINARY SCOPING STATEMENT.
19 5. AFTER MEETING THE REQUIREMENTS OF SUBDIVISIONS ONE THROUGH THREE
20 OF THIS SECTION, AND AFTER PRE-APPLICATION INTERVENOR FUNDS HAVE BEEN
21 ALLOCATED BY THE PRE-HEARING EXAMINER PURSUANT TO PARAGRAPH (A) OF
22 SUBDIVISION FOUR OF THIS SECTION, SUCH PERSON MAY CONSULT AND SEEK
23 AGREEMENT WITH ANY INTERESTED PERSON, INCLUDING, BUT NOT LIMITED TO, THE
24 STAFF OF THE DEPARTMENT, THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION
25 AND THE DEPARTMENT OF HEALTH, AS APPROPRIATE, AS TO ANY ASPECT OF THE
26 PRELIMINARY SCOPING STATEMENT AND ANY STUDY OR PROGRAM OF STUDIES MADE
27 OR TO BE MADE TO SUPPORT SUCH APPLICATION. THE STAFF OF THE DEPARTMENT,
28 THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, THE DEPARTMENT OF HEALTH,
29 THE PERSON PROPOSING TO FILE AN APPLICATION, AND ANY OTHER INTERESTED
30 PERSON MAY ENTER INTO A STIPULATION SETTING FORTH AN AGREEMENT ON ANY
31 ASPECT OF THE PRELIMINARY SCOPING STATEMENT AND THE STUDIES OR PROGRAM
32 OF STUDIES TO BE CONDUCTED. ANY SUCH PERSON PROPOSING TO SUBMIT AN
33 APPLICATION FOR A CERTIFICATE SHALL SERVE A COPY OF THE PROPOSED STIPU-
34 LATION UPON ALL PERSONS ENUMERATED IN PARAGRAPH (A) OF SUBDIVISION TWO
35 OF SECTION ONE HUNDRED SIXTY-FOUR OF THIS ARTICLE, PROVIDE NOTICE OF
36 SUCH STIPULATION TO THOSE PERSONS IDENTIFIED IN PARAGRAPH (B) OF SUCH
37 SUBDIVISION, AND AFFORD THE PUBLIC A REASONABLE OPPORTUNITY TO SUBMIT
38 COMMENTS ON THE STIPULATION BEFORE IT IS EXECUTED BY THE INTERESTED
39 PARTIES. NOTHING IN THIS SECTION, HOWEVER, SHALL BAR ANY PARTY TO A
40 HEARING ON AN APPLICATION, OTHER THAN ANY PARTY TO A PRE-APPLICATION
41 STIPULATION, FROM TIMELY RAISING OBJECTIONS TO ANY ASPECT OF THE PRELIM-
42 INARY SCOPING STATEMENT AND THE METHODOLOGY AND SCOPE OF ANY STIPULATED
43 STUDIES OR PROGRAM OF STUDIES IN ANY SUCH AGREEMENT. IN ORDER TO ATTEMPT
44 TO RESOLVE ANY QUESTIONS THAT MAY ARISE AS A RESULT OF SUCH CONSULTA-
45 TION, THE DEPARTMENT SHALL DESIGNATE A HEARING EXAMINER WHO SHALL OVER-
46 SEE THE PRE-APPLICATION PROCESS AND MEDIATE ANY ISSUE RELATING TO ANY
47 ASPECT OF THE PRELIMINARY SCOPING STATEMENT AND THE METHODOLOGY AND
48 SCOPE OF ANY SUCH STUDIES OR PROGRAMS OF STUDY. UPON COMPLETION OF THE
49 NOTICE PROVISIONS PROVIDED IN THIS SECTION, SUCH HEARING EXAMINER SHALL,
50 WITHIN SIXTY DAYS OF THE FILING OF A PRELIMINARY SCOPING STATEMENT,
51 CONVENE A MEETING OF INTERESTED PARTIES IN ORDER TO INITIATE THE STIPU-
52 LATION PROCESS.
53 S 164. APPLICATION FOR A CERTIFICATE. 1. AN APPLICANT FOR A CERTIF-
54 ICATE SHALL FILE WITH THE CHAIR OF THE BOARD AN APPLICATION, IN SUCH
55 FORM AS THE BOARD MAY PRESCRIBE CONTAINING THE FOLLOWING INFORMATION AND
56 MATERIALS:
S. 1180 7
1 (A) A DESCRIPTION OF THE SITE AND A DESCRIPTION OF THE FACILITY TO BE
2 BUILT THEREON; INCLUDING AVAILABLE SITE INFORMATION, MAPS AND
3 DESCRIPTIONS, PRESENT AND PROPOSED DEVELOPMENT, SOURCE AND VOLUME OF
4 WATER REQUIRED FOR PLANT OPERATION AND COOLING, ANTICIPATED EMISSIONS TO
5 AIR, INCLUDING BUT NOT LIMITED TO PARTICULATE MATTER OF 2.5 MICRONS OR
6 SMALLER, FEDERAL CRITERIA POLLUTANTS AND TOXINS, INCLUDING MERCURY,
7 ANTICIPATED DISCHARGES TO WATER AND GROUNDWATER, POLLUTION CONTROL
8 EQUIPMENT, AND, AS APPROPRIATE, GEOLOGICAL, AESTHETIC, ECOLOGICAL,
9 TSUNAMI, SEISMIC, BIOLOGICAL, WATER SUPPLY, POPULATION AND LOAD CENTER
10 DATA;
11 (B) STUDIES, IDENTIFYING THE AUTHOR AND DATE THEREOF, WHICH HAVE BEEN
12 MADE OF THE EXPECTED ENVIRONMENTAL AND HEALTH IMPACTS AND SAFETY IMPLI-
13 CATIONS OF THE FACILITY, BOTH DURING ITS CONSTRUCTION AND ITS OPERATION,
14 WHICH STUDIES ARE SUFFICIENT TO IDENTIFY (I) THE ANTICIPATED GASEOUS,
15 LIQUID AND SOLID WASTES TO BE PRODUCED AT THE FACILITY INCLUDING THEIR
16 SOURCE, ANTICIPATED VOLUMES, COMPOSITION AND TEMPERATURE, AND SUCH OTHER
17 ATTRIBUTES AS THE BOARD MAY SPECIFY AND THE PROBABLE LEVEL OF NOISE
18 DURING CONSTRUCTION AND OPERATION OF THE FACILITY; (II) THE TREATMENT
19 PROCESSES TO REDUCE WASTES TO BE RELEASED TO THE ENVIRONMENT, THE MANNER
20 OF DISPOSAL FOR WASTES RETAINED AND MEASURES FOR NOISE ABATEMENT; (III)
21 THE ANTICIPATED VOLUMES OF WASTES TO BE RELEASED TO THE ENVIRONMENT
22 UNDER ANY OPERATING CONDITION OF THE FACILITY, INCLUDING SUCH METEORO-
23 LOGICAL, HYDROLOGICAL AND OTHER INFORMATION NEEDED TO SUPPORT SUCH ESTI-
24 MATES; (IV) CONCEPTUAL ARCHITECTURAL AND ENGINEERING PLANS INDICATING
25 COMPATIBILITY OF THE FACILITY WITH THE ENVIRONMENT; (V) HOW THE
26 CONSTRUCTION AND OPERATION OF THE FACILITY, INCLUDING TRANSPORTATION AND
27 DISPOSAL OF WASTES WOULD COMPLY WITH ENVIRONMENTAL HEALTH AND SAFETY
28 STANDARDS, REQUIREMENTS, REGULATIONS AND RULES UNDER STATE AND MUNICIPAL
29 LAWS, AND A STATEMENT WHY ANY VARIANCES OR EXCEPTIONS SHOULD BE GRANTED;
30 (VI) WATER WITHDRAWALS FROM AND DISCHARGES TO THE WATERSHED; (VII) A
31 DESCRIPTION OF THE FUEL INTERCONNECTION AND SUPPLY FOR THE PROJECT; AND
32 (VIII) AN ELECTRIC INTERCONNECTION STUDY, CONSISTING GENERALLY OF A
33 DESIGN STUDY AND A SYSTEM RELIABILITY IMPACT STUDY;
34 (C) A STATEMENT DEMONSTRATING THAT THE FACILITY WILL SATISFY ADDI-
35 TIONAL ELECTRIC CAPACITY OR OTHER ELECTRIC SYSTEM NEEDS, AND THAT THE
36 CONSTRUCTION OF THE FACILITY IS REASONABLY CONSISTENT WITH LONG-RANGE
37 ENERGY PLANNING OBJECTIVES AND STRATEGIES;
38 (D) SUCH EVIDENCE AS WILL ENABLE THE BOARD AND THE COMMISSIONER OF
39 ENVIRONMENTAL CONSERVATION TO EVALUATE THE FACILITY'S POLLUTION CONTROL
40 SYSTEMS AND TO REACH A DETERMINATION TO ISSUE THEREFOR, SUBJECT TO
41 APPROPRIATE CONDITIONS AND LIMITATIONS, PERMITS PURSUANT TO FEDERAL
42 RECOGNITION OF STATE AUTHORITY IN ACCORDANCE WITH THE FEDERAL CLEAN
43 WATER ACT, THE FEDERAL CLEAN AIR ACT AND THE FEDERAL RESOURCE CONSERVA-
44 TION AND RECOVERY ACT;
45 (E) WHERE THE PROPOSED FACILITY INTENDS TO USE PETROLEUM OR OTHER
46 BACK-UP FUEL FOR GENERATING ELECTRICITY, EVIDENCE AND AN EVALUATION ON
47 BOTH (I) THE ADEQUACY OF THE FACILITY'S ON-SITE BACK-UP FUEL STORAGE AND
48 SUPPLY, AND (II) THE POTENTIAL IMPACT THAT INTERRUPTION OF THE FACILI-
49 TY'S PRIMARY FUEL WILL HAVE UPON THE FUEL SUPPLY AND DISTRIBUTION INDUS-
50 TRIES;
51 (F) A PLAN FOR SECURITY OF THE PROPOSED FACILITY DURING CONSTRUCTION
52 AND OPERATION OF SUCH FACILITY AND THE MEASURES TO BE TAKEN TO ENSURE
53 THE SAFETY AND SECURITY OF THE LOCAL COMMUNITY, INCLUDING CONTINGENCY,
54 EMERGENCY RESPONSE AND EVACUATION CONTROL, TO BE REVIEWED BY THE BOARD
55 IN CONSULTATION WITH THE NEW YORK STATE EMERGENCY MANAGEMENT OFFICE AND
S. 1180 8
1 IN CITIES WITH A POPULATION OVER ONE MILLION, SUCH PLAN SHALL ALSO BE
2 REVIEWED BY THE LOCAL OFFICE OF EMERGENCY MANAGEMENT;
3 (G) SUCH OTHER INFORMATION AS THE APPLICANT MAY CONSIDER RELEVANT OR
4 AS MAY BE REQUIRED BY THE BOARD. COPIES OF THE APPLICATION, INCLUDING
5 THE REQUIRED INFORMATION, SHALL BE FILED WITH THE BOARD AND SHALL BE
6 AVAILABLE FOR PUBLIC INSPECTION; AND
7 (H) A DESCRIPTION AND EVALUATION OF REASONABLE ALTERNATIVE LOCATIONS
8 TO THE PROPOSED FACILITY, IF ANY, AND WITH RESPECT TO A FACILITY THAT
9 HAS NOT BEEN SELECTED PURSUANT TO AN APPROVED PROCUREMENT PROCESS, A
10 DESCRIPTION AND EVALUATION OF REASONABLE DEMAND ENERGY SUPPLY SOURCE
11 ALTERNATIVES AND, WHERE APPROPRIATE, DEMAND-REDUCING MEASURES TO THE
12 PROPOSED FACILITY; A DESCRIPTION OF THE COMPARATIVE ADVANTAGES AND
13 DISADVANTAGES AS APPROPRIATE; AND A STATEMENT OF THE REASONS WHY THE
14 PRIMARY PROPOSED LOCATION AND SOURCE, AS APPROPRIATE, IS BEST SUITED,
15 AMONG THE ALTERNATIVES CONSIDERED, TO PROMOTE PUBLIC HEALTH AND WELFARE,
16 INCLUDING THE RECREATIONAL AND OTHER CONCURRENT USES WHICH THE SITE MAY
17 SERVE, PROVIDED THAT THE INFORMATION REQUIRED PURSUANT TO THIS PARAGRAPH
18 SHALL BE NO MORE EXTENSIVE THAN REQUIRED UNDER ARTICLE EIGHT OF THE
19 ENVIRONMENTAL CONSERVATION LAW.
20 2. EACH APPLICATION SHALL BE ACCOMPANIED BY PROOF OF SERVICE, IN SUCH
21 MANNER AS THE BOARD SHALL PRESCRIBE, OF:
22 (A) A COPY OF SUCH APPLICATION ON (I) EACH MUNICIPALITY IN WHICH ANY
23 PORTION OF SUCH FACILITY IS TO BE LOCATED AS PROPOSED OR IN ANY ALTERNA-
24 TIVE LOCATION LISTED. SUCH COPY TO A MUNICIPALITY SHALL BE ADDRESSED TO
25 THE CHIEF EXECUTIVE OFFICER THEREOF AND SHALL SPECIFY THE DATE ON OR
26 ABOUT WHICH THE APPLICATION IS TO BE FILED;
27 (II) EACH MEMBER OF THE BOARD;
28 (III) THE DEPARTMENT OF AGRICULTURE AND MARKETS;
29 (IV) THE SECRETARY OF STATE;
30 (V) THE ATTORNEY GENERAL;
31 (VI) THE DEPARTMENT OF TRANSPORTATION;
32 (VII) THE OFFICE OF PARKS, RECREATION AND HISTORIC PRESERVATION;
33 (VIII) A LIBRARY SERVING THE DISTRICT OF EACH MEMBER OF THE STATE
34 LEGISLATURE IN WHOSE DISTRICT ANY PORTION OF THE FACILITY IS TO BE
35 LOCATED AS PROPOSED OR IN ANY ALTERNATIVE LOCATION LISTED;
36 (IX) IN THE EVENT THAT SUCH FACILITY OR ANY PORTION THEREOF AS
37 PROPOSED OR IN ANY ALTERNATIVE LOCATION LISTED IS LOCATED WITHIN THE
38 ADIRONDACK PARK, AS DEFINED IN SUBDIVISION ONE OF SECTION 9-0101 OF THE
39 ENVIRONMENTAL CONSERVATION LAW, THE ADIRONDACK PARK AGENCY; AND
40 (X) THE PUBLIC INFORMATION OFFICER FOR PLACEMENT ON THE WEBSITE OF THE
41 DEPARTMENT; AND
42 (B) A NOTICE OF SUCH APPLICATION ON (I) PERSONS RESIDING IN MUNICI-
43 PALITIES ENTITLED TO RECEIVE A COPY OF THE APPLICATION UNDER SUBPARA-
44 GRAPH (I) OF PARAGRAPH (A) OF THIS SUBDIVISION. SUCH NOTICE SHALL BE
45 GIVEN BY THE PUBLICATION OF A SUMMARY OF THE APPLICATION AND THE DATE ON
46 OR ABOUT WHICH IT WILL BE FILED, TO BE PUBLISHED UNDER REGULATIONS TO BE
47 PROMULGATED BY THE BOARD, IN SUCH FORM AND IN SUCH NEWSPAPER OR NEWSPA-
48 PERS, INCLUDING LOCAL COMMUNITY AND GENERAL CIRCULATION NEWSPAPERS, AS
49 WILL SERVE SUBSTANTIALLY TO INFORM THE PUBLIC OF SUCH APPLICATION, IN
50 PLAIN LANGUAGE, IN ENGLISH AND IN ANY OTHER LANGUAGE SPOKEN AS DETER-
51 MINED BY THE BOARD BY A SIGNIFICANT PORTION OF THE POPULATION IN THE
52 COMMUNITY, THAT DESCRIBES THE PROPOSED FACILITY AND ITS LOCATION, THE
53 RANGE OF POTENTIAL ENVIRONMENTAL AND HEALTH IMPACTS OF EACH POLLUTANT,
54 THE APPLICATION AND REVIEW PROCESS, AND A CONTACT PERSON, WITH PHONE
55 NUMBER AND ADDRESS, FROM WHOM INFORMATION WILL BE AVAILABLE AS THE
56 APPLICATION PROCEEDS;
S. 1180 9
1 (II) EACH MEMBER OF THE STATE LEGISLATURE IN WHOSE DISTRICT ANY
2 PORTION OF THE FACILITY IS TO BE LOCATED AS PROPOSED OR IN ANY ALTERNA-
3 TIVE LOCATION LISTED; AND
4 (III) PERSONS WHO HAVE FILED A STATEMENT WITH THE BOARD WITHIN THE
5 PAST TWELVE MONTHS THAT THEY WISH TO RECEIVE ALL SUCH NOTICES CONCERNING
6 FACILITIES IN THE AREA IN WHICH THE FACILITY IS TO BE LOCATED AS
7 PROPOSED OR IN ANY ALTERNATIVE LOCATION LISTED.
8 3. INADVERTENT FAILURE OF SERVICE ON ANY OF THE MUNICIPALITIES,
9 PERSONS, AGENCIES, BODIES OR COMMISSIONS NAMED IN SUBDIVISION TWO OF
10 THIS SECTION SHALL NOT BE JURISDICTIONAL AND MAY BE CURED PURSUANT TO
11 REGULATIONS OF THE BOARD DESIGNED TO AFFORD SUCH PERSONS ADEQUATE NOTICE
12 TO ENABLE THEM TO PARTICIPATE EFFECTIVELY IN THE PROCEEDING. IN ADDI-
13 TION, THE BOARD MAY, AFTER FILING, REQUIRE THE APPLICANT TO SERVE NOTICE
14 OF THE APPLICATION OR COPIES THEREOF OR BOTH UPON SUCH OTHER PERSONS AND
15 FILE PROOF THEREOF AS THE BOARD MAY DEEM APPROPRIATE.
16 4. THE BOARD SHALL PRESCRIBE THE FORM AND CONTENT OF AN APPLICATION
17 FOR AN AMENDMENT OF A CERTIFICATE TO BE ISSUED PURSUANT TO THIS ARTICLE.
18 NOTICE OF SUCH AN APPLICATION SHALL BE GIVEN AS SET FORTH IN SUBDIVISION
19 TWO OF THIS SECTION.
20 5. IF A REASONABLE ALTERNATIVE LOCATION OR A REASONABLE ALTERNATIVE
21 ENERGY SUPPLY SOURCE OR DEMAND REDUCING MEASURE NOT LISTED IN THE APPLI-
22 CATION IS PROPOSED IN THE CERTIFICATION PROCEEDING, NOTICE OF SUCH
23 PROPOSED ALTERNATIVE SHALL BE GIVEN AS SET FORTH IN SUBDIVISION TWO OF
24 THIS SECTION.
25 6. (A) EACH APPLICATION SHALL BE ACCOMPANIED BY A FEE IN AN AMOUNT (I)
26 EQUAL TO ONE THOUSAND DOLLARS FOR EACH THOUSAND KILOWATTS OF CAPACITY,
27 BUT NO MORE THAN FOUR HUNDRED THOUSAND DOLLARS, (II) AND FOR FACILITIES
28 THAT WILL REQUIRE STORAGE OR DISPOSAL OF FUEL WASTE BYPRODUCT AN ADDI-
29 TIONAL FEE OF FIVE HUNDRED DOLLARS FOR EACH THOUSAND KILOWATT OF CAPACI-
30 TY, BUT NO MORE THAN TWO HUNDRED THOUSAND DOLLARS SHALL BE DEPOSITED IN
31 THE INTERVENOR ACCOUNT, ESTABLISHED PURSUANT TO SECTION
32 NINETY-SEVEN-KKKK OF THE STATE FINANCE LAW, TO BE DISBURSED AT THE
33 BOARD'S DIRECTION, TO DEFRAY EXPENSES INCURRED BY MUNICIPAL AND OTHER
34 LOCAL PARTIES TO THE PROCEEDING (EXCEPT A MUNICIPALITY WHICH IS THE
35 APPLICANT) FOR EXPERT WITNESS, CONSULTANT, ADMINISTRATIVE AND LEGAL
36 FEES, PROVIDED, HOWEVER, SUCH EXPENSES SHALL NOT BE AVAILABLE FOR JUDI-
37 CIAL REVIEW. IF AT ANY TIME SUBSEQUENT TO THE FILING OF THE APPLICATION,
38 THE APPLICATION IS AMENDED IN A MANNER THAT WARRANTS SUBSTANTIAL ADDI-
39 TIONAL SCRUTINY, THE BOARD MAY REQUIRE AN ADDITIONAL INTERVENOR FEE IN
40 AN AMOUNT NOT TO EXCEED ONE HUNDRED TWENTY-FIVE THOUSAND DOLLARS. THE
41 BOARD SHALL PROVIDE FOR TRANSCRIPTS, THE REPRODUCTION AND SERVICE OF
42 DOCUMENTS, AND THE PUBLICATION OF REQUIRED NOTICES, FOR MUNICIPAL AND
43 OTHER LOCAL PARTIES, IN ALL APPROPRIATE LANGUAGES. ANY MONEYS REMAINING
44 IN THE INTERVENOR ACCOUNT AFTER THE BOARD'S JURISDICTION OVER AN APPLI-
45 CATION HAS CEASED SHALL BE RETURNED TO THE APPLICANT.
46 (B) NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, THE
47 BOARD SHALL PROVIDE BY RULES AND REGULATIONS FOR THE MANAGEMENT OF THE
48 INTERVENOR ACCOUNT AND FOR DISBURSEMENTS FROM THE ACCOUNT, WHICH RULES
49 AND REGULATIONS SHALL BE CONSISTENT WITH THE PURPOSE OF THIS SECTION TO
50 MAKE AVAILABLE TO MUNICIPAL PARTIES AT LEAST ONE-HALF OF THE AMOUNT OF
51 THE INTERVENOR ACCOUNT AND FOR USES SPECIFIED IN PARAGRAPH (A) OF THIS
52 SUBDIVISION. IN ADDITION, THE BOARD SHALL PROVIDE OTHER LOCAL PARTIES UP
53 TO ONE-HALF OF THE AMOUNT OF THE INTERVENOR ACCOUNT, PROVIDED, HOWEVER,
54 THAT THE BOARD SHALL ASSURE THAT THE PURPOSES FOR WHICH MONEYS IN THE
55 INTERVENOR ACCOUNT WILL BE EXPENDED WILL CONTRIBUTE TO AN INFORMED DECI-
56 SION AS TO THE APPROPRIATENESS OF THE SITE AND FACILITY AND ARE MADE
S. 1180 10
1 AVAILABLE ON AN EQUITABLE BASIS IN A MANNER WHICH FACILITATES BROAD
2 PUBLIC PARTICIPATION.
3 S 165. HEARING SCHEDULE. 1. AFTER THE RECEIPT OF AN APPLICATION FILED
4 PURSUANT TO SECTION ONE HUNDRED SIXTY-FOUR OF THIS ARTICLE, THE CHAIR OF
5 THE BOARD SHALL, WITHIN SIXTY DAYS OF SUCH RECEIPT, DETERMINE WHETHER
6 THE APPLICATION COMPLIES WITH SUCH SECTION AND UPON FINDING THAT THE
7 APPLICATION SO COMPLIES, FIX A DATE FOR THE COMMENCEMENT OF A PUBLIC
8 HEARING. UPON A DETERMINATION THAT AN APPLICATION COMPLIES WITH SECTION
9 ONE HUNDRED SIXTY-FOUR OF THIS ARTICLE THE DEPARTMENT OF ENVIRONMENTAL
10 CONSERVATION MAY INITIATE A REVIEW PURSUANT TO FEDERALLY DELEGATED OR
11 APPROVED ENVIRONMENTAL PERMITTING AUTHORITY. THE CHAIR OF THE BOARD MAY
12 REQUIRE THE FILING OF ANY ADDITIONAL INFORMATION NEEDED TO SUPPLEMENT AN
13 APPLICATION BEFORE OR DURING THE HEARINGS.
14 2. WITHIN A REASONABLE TIME AFTER THE DATE HAS BEEN FIXED BY THE CHAIR
15 FOR COMMENCEMENT OF A PUBLIC HEARING, THE PRESIDING EXAMINER SHALL HOLD
16 A PREHEARING CONFERENCE TO EXPEDITE THE ORDERLY CONDUCT AND DISPOSITION
17 OF THE HEARING, TO SPECIFY THE ISSUES, TO OBTAIN STIPULATIONS AS TO
18 MATTERS NOT DISPUTED, AND TO DEAL WITH SUCH OTHER MATTERS AS THE PRESID-
19 ING EXAMINER MAY DEEM PROPER. THEREAFTER, THE PRESIDING EXAMINER SHALL
20 ISSUE AN ORDER IDENTIFYING THE ISSUES TO BE ADDRESSED BY THE PARTIES
21 PROVIDED, HOWEVER, THAT NO SUCH ORDER SHALL PRECLUDE CONSIDERATION OF
22 ADDITIONAL ISSUES OR REQUESTS FOR ADDITIONAL SUBMISSIONS, DOCUMENTATION
23 OR TESTIMONY AT A HEARING WHICH WARRANT CONSIDERATION IN ORDER TO DEVEL-
24 OP AN ADEQUATE RECORD AS DETERMINED BY AN ORDER OF THE BOARD. THE
25 PRESIDING EXAMINER SHALL BE PERMITTED A REASONABLE TIME TO RESPOND TO
26 ANY AND ALL INTERLOCUTORY MOTIONS AND APPEALS, BUT IN NO CASE SHALL SUCH
27 TIME EXTEND BEYOND FORTY-FIVE DAYS.
28 3. ALL PARTIES SHALL BE PREPARED TO PROCEED IN AN EXPEDITIOUS MANNER
29 AT THE HEARING SO THAT IT MAY PROCEED REGULARLY UNTIL COMPLETION, EXCEPT
30 THAT HEARINGS SHALL BE OF SUFFICIENT DURATION TO PROVIDE ADEQUATE OPPOR-
31 TUNITY TO HEAR DIRECT EVIDENCE AND REBUTTAL EVIDENCE FROM RESIDENTS OF
32 THE AREA AFFECTED BY THE PROPOSED MAJOR ELECTRIC GENERATING FACILITY. TO
33 THE EXTENT PRACTICABLE, THE PLACE OF THE HEARING SHALL BE DESIGNATED BY
34 THE PRESIDING EXAMINER AT A LOCATION WITHIN TWO MILES OF THE PROPOSED
35 LOCATION OF THE FACILITY.
36 4. PROCEEDINGS ON AN APPLICATION SHALL BE COMPLETED IN ALL RESPECTS IN
37 A MANNER CONSISTENT WITH FEDERALLY DELEGATED OR APPROVED ENVIRONMENTAL
38 PERMITTING AUTHORITY, INCLUDING A FINAL DECISION BY THE BOARD, WITHIN
39 TWELVE MONTHS FROM THE DATE OF A DETERMINATION BY THE CHAIR THAT AN
40 APPLICATION COMPLIES WITH SECTION ONE HUNDRED SIXTY-FOUR OF THIS ARTI-
41 CLE; PROVIDED, HOWEVER, THE BOARD MAY EXTEND THE DEADLINE IN EXTRAOR-
42 DINARY CIRCUMSTANCES BY NO MORE THAN SIX MONTHS IN ORDER TO GIVE CONSID-
43 ERATION TO SPECIFIC ISSUES NECESSARY TO DEVELOP AN ADEQUATE RECORD. THE
44 BOARD MUST RENDER A FINAL DECISION ON THE APPLICATION BY THE AFOREMEN-
45 TIONED DEADLINES UNLESS SUCH DEADLINES ARE WAIVED BY THE APPLICANT. IF,
46 AT ANY TIME SUBSEQUENT TO THE COMMENCEMENT OF THE HEARING, THERE IS A
47 MATERIAL AND SUBSTANTIAL AMENDMENT TO THE APPLICATION, THE DEADLINES MAY
48 BE EXTENDED BY NO MORE THAN SIX MONTHS, UNLESS SUCH DEADLINE IS WAIVED
49 BY THE APPLICANT, TO CONSIDER SUCH AMENDMENT.
50 5. ON AN APPLICATION FOR AN AMENDMENT OF A CERTIFICATE PROPOSING A
51 CHANGE IN THE FACILITY LIKELY TO RESULT IN ANY MATERIAL INCREASE IN ANY
52 ENVIRONMENTAL IMPACT OF THE FACILITY OR A SUBSTANTIAL CHANGE IN THE
53 LOCATION OF ALL OR A PORTION OF SUCH FACILITY, A HEARING SHALL BE HELD
54 IN THE SAME MANNER AS A HEARING ON AN APPLICATION FOR A CERTIFICATE. THE
55 BOARD SHALL PROMULGATE RULES, REGULATIONS AND STANDARDS UNDER WHICH IT
S. 1180 11
1 SHALL DETERMINE WHETHER HEARINGS ARE REQUIRED UNDER THIS SUBDIVISION AND
2 SHALL MAKE SUCH DETERMINATIONS.
3 S 166. PARTIES TO A CERTIFICATION PROCEEDING. 1. THE PARTIES TO THE
4 CERTIFICATION PROCEEDINGS SHALL INCLUDE:
5 (A) THE APPLICANT;
6 (B) THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, WHICH SHALL IN ANY
7 SUCH PROCEEDING PRESENT EXPERT TESTIMONY AND INFORMATION INCLUDING:
8 (I) A CUMULATIVE IMPACTS ANALYSIS OF AIR QUALITY BASED ON EXISTING AND
9 PROJECTED EMISSIONS FROM EXISTING AND PROPOSED SOURCES LOCATED WITHIN
10 THE COUNTY IN WHICH THE FACILITY IS PROPOSED AND EACH COUNTY ADJACENT TO
11 SUCH COUNTY, OR WHERE SUCH FACILITY IS PROPOSED IN CITIES WITH A POPU-
12 LATION OF ONE MILLION OR GREATER, FOR AN AREA COMPRISING A FIVE-MILE
13 RADIUS FROM THE LOCATION OF THE PROPOSED FACILITY, THE COUNTY OF THE
14 PROPOSED FACILITY AND EACH COUNTY ADJACENT TO SUCH COUNTY, INCLUDING,
15 BUT NOT LIMITED TO, PARTICULATE MATTER OF 2.5 MICRONS OR SMALLER, FEDER-
16 AL CRITERIA POLLUTANTS AND TOXINS, INCLUDING MERCURY, AND FOR WHICH
17 CUMULATIVE IMPACTS THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION SHALL
18 PROMULGATE REGULATIONS WITHIN SIX MONTHS OF THE EFFECTIVE DATE OF THIS
19 SUBPARAGRAPH;
20 (II) A COMPREHENSIVE DEMOGRAPHIC, ECONOMIC AND PHYSICAL DESCRIPTION OF
21 THE COMMUNITY WITHIN WHICH THE FACILITY IS LOCATED, WITHIN A TWO-MILE
22 RADIUS OF THE LOCATION OF THE PROPOSED FACILITY, COMPARED AND CONTRASTED
23 WITH THE COUNTY IN WHICH THE FACILITY IS PROPOSED AND WITH NEIGHBORING
24 COMMUNITIES, INCLUDING RESIDENTIAL PATTERNS, POPULATION, RACIAL AND
25 ETHNIC CHARACTERISTICS, INCOME LEVELS, EMPLOYMENT, OPEN SPACE, EDUCA-
26 TIONAL, BUSINESS, AND PUBLIC HEALTH DATA, INCLUDING BUT NOT LIMITED TO
27 INCIDENTS OF RESPIRATORY AILMENTS, CANCER, AND INFANT MORTALITY, AND FOR
28 WHICH COMPREHENSIVE DESCRIPTION THE DEPARTMENT OF ENVIRONMENTAL CONSER-
29 VATION SHALL PROMULGATE REGULATIONS WITHIN SIX MONTHS OF THE EFFECTIVE
30 DATE OF THIS SUBPARAGRAPH;
31 (III) ANY OTHER POTENTIAL ENVIRONMENTAL IMPACTS OF THE PROPOSED FACIL-
32 ITY, AND, AS APPROPRIATE, ANY ALTERNATE FACILITY OR ENERGY SOURCE ON THE
33 ENVIRONMENT, AND WHETHER AND HOW SUCH FACILITY WOULD COMPLY WITH APPLI-
34 CABLE STATE AND FEDERAL ENVIRONMENTAL PROTECTION LAWS, STANDARDS, RULES
35 AND REGULATIONS;
36 (C) THE DEPARTMENT OF ECONOMIC DEVELOPMENT;
37 (D) THE DEPARTMENT OF HEALTH, WHICH SHALL CONSULT WITH THE DEPARTMENT
38 OF ENVIRONMENTAL CONSERVATION AND CONTRIBUTE TO THE DEVELOPMENT OF THE
39 ANALYSIS AND TESTIMONY CONCERNING ISSUES DESCRIBED IN SUBPARAGRAPH (II)
40 OF PARAGRAPH (B) OF THIS SUBDIVISION;
41 (E) THE DEPARTMENT OF AGRICULTURE AND MARKETS;
42 (F) THE NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY,
43 WHICH SHALL BE REQUIRED IN ANY SUCH PROCEEDING TO PRESENT EXPERT TESTI-
44 MONY AND INFORMATION CONSISTING OF:
45 (I) A COST-BASED ANALYSIS OF THE POTENTIAL IMPACT OF THE PROPOSED
46 FACILITY ON THE WHOLESALE GENERATION MARKETS, BOTH GENERALLY AND FOR THE
47 LOCATION-BASED MARKET IN WHICH THE FACILITY IS PROPOSED, AS WELL AS THE
48 POTENTIAL IMPACT OF THE PROPOSED FACILITY ON FUEL COSTS, IN COMPARISON
49 WITH THE COSTS FOR ACHIEVING AN EQUAL LEVEL OF CAPACITY THROUGH ALTERNA-
50 TIVE RESOURCES, INCLUDING RENEWABLE ENERGY RESOURCES AND ENERGY CONSER-
51 VATION AND EFFICIENCY PROGRAMS, AND
52 (II) A DISCUSSION OF THE CONTRIBUTION OR IMPAIRMENT OF THE PROPOSED
53 FACILITY TOWARDS MEETING THE ENUMERATED GOALS AS DISCUSSED IN THE MOST
54 RECENT STATE ENERGY PLAN, INCLUDING IMPACTS ON FUEL DIVERSITY, REGIONAL
55 REQUIREMENTS FOR CAPACITY, ELECTRIC TRANSMISSION AND FUEL DELIVERY
56 CONSTRAINTS AND OTHER ISSUES AS APPROPRIATE, INCLUDING THE COMPARATIVE
S. 1180 12
1 ADVANTAGES AND DISADVANTAGES OF REASONABLE ALTERNATE LOCATIONS OR PROP-
2 ERTIES IDENTIFIED FOR POWER PLANT CONSTRUCTION, AND A STATEMENT OF THE
3 REASONS WHY THE PROPOSED LOCATION AND SOURCE IS BEST SUITED, AMONG THE
4 ALTERNATIVES IDENTIFIED, TO PROMOTE PUBLIC HEALTH AND WELFARE;
5 (G) THE DEPARTMENT OF STATE, WHICH SHALL BE REQUIRED IN ANY SUCH
6 PROCEEDING TO PRESENT EXPERT TESTIMONY AND INFORMATION CONCERNING THE
7 COMPATIBILITY OF THE PROPOSED FACILITY WITH FEDERAL AND STATE COASTAL
8 ZONE MANAGEMENT LAWS, REGULATIONS AND POLICIES;
9 (H) THE OFFICE OF PARKS, RECREATION AND HISTORIC PRESERVATION, WHICH
10 SHALL BE REQUIRED IN ANY SUCH PROCEEDING TO PRESENT EXPERT TESTIMONY AND
11 INFORMATION CONCERNING THE IMPACT OF THE PROPOSED FACILITY ON PARKLANDS
12 AND ARCHEOLOGICAL, HISTORICAL, CULTURAL AND RECREATIONAL RESOURCES;
13 (I) WHERE THE FACILITY OR ANY PORTION THEREOF OR OF ANY ALTERNATE IS
14 TO BE LOCATED WITHIN THE ADIRONDACK PARK, AS DEFINED IN SUBDIVISION ONE
15 OF SECTION 9-0101 OF THE ENVIRONMENTAL CONSERVATION LAW, THE ADIRONDACK
16 PARK AGENCY;
17 (J) A MUNICIPALITY ENTITLED TO RECEIVE A COPY OF THE APPLICATION UNDER
18 PARAGRAPH (A) OF SUBDIVISION TWO OF SECTION ONE HUNDRED SIXTY-FOUR OF
19 THIS ARTICLE, IF IT HAS FILED WITH THE BOARD A NOTICE OF INTENT TO BE A
20 PARTY, WITHIN FORTY-FIVE DAYS AFTER THE DATE GIVEN IN THE PUBLISHED
21 NOTICE AS THE DATE FOR THE FILING OF THE APPLICATION; ANY MUNICIPALITY
22 ENTITLED TO BE A PARTY HEREIN AND SEEKING TO ENFORCE ANY LOCAL ORDI-
23 NANCE, LAW, RESOLUTION OR OTHER ACTION OR REGULATION OTHERWISE APPLICA-
24 BLE SHALL PRESENT EVIDENCE IN SUPPORT THEREOF OR SHALL BE BARRED FROM
25 THE ENFORCEMENT THEREOF;
26 (K) ANY INDIVIDUAL RESIDENT IN A MUNICIPALITY ENTITLED TO RECEIVE A
27 COPY OF THE APPLICATION UNDER PARAGRAPH (A) OF SUBDIVISION TWO OF
28 SECTION ONE HUNDRED SIXTY-FOUR OF THIS ARTICLE IF HE HAS FILED WITH THE
29 BOARD A NOTICE OF INTENT TO BE A PARTY, WITHIN FORTY-FIVE DAYS AFTER THE
30 DATE GIVEN IN THE PUBLISHED NOTICE AS THE DATE FOR FILING OF THE APPLI-
31 CATION;
32 (1) ANY NON-PROFIT CORPORATION OR ASSOCIATION, FORMED IN WHOLE OR IN
33 PART TO PROMOTE CONSERVATION OR NATURAL BEAUTY, TO PROTECT THE ENVIRON-
34 MENT, PERSONAL HEALTH OR OTHER BIOLOGICAL VALUES, TO PRESERVE HISTORICAL
35 SITES, TO PROMOTE CONSUMER INTERESTS, TO REPRESENT COMMERCIAL AND INDUS-
36 TRIAL GROUPS OR TO PROMOTE THE ORDERLY DEVELOPMENT OF ANY AREA IN WHICH
37 THE FACILITY IS TO BE LOCATED, IF IT HAS FILED WITH THE BOARD A NOTICE
38 OF INTENT TO BECOME A PARTY, WITHIN FORTY-FIVE DAYS AFTER THE DATE GIVEN
39 IN THE PUBLISHED NOTICE AS THE DATE FOR FILING OF THE APPLICATION;
40 (M) ANY OTHER MUNICIPALITY OR RESIDENT OF SUCH MUNICIPALITY LOCATED
41 WITHIN A FIVE MILE RADIUS OF SUCH PROPOSED FACILITY, IF IT OR THE RESI-
42 DENT HAS FILED WITH THE BOARD A NOTICE OF INTENT TO BECOME A PARTY,
43 WITHIN FORTY-FIVE DAYS AFTER THE DATE GIVEN IN THE PUBLISHED NOTICE AS
44 THE DATE FOR FILING OF THE APPLICATION;
45 (N) ANY OTHER MUNICIPALITY OR RESIDENT OF SUCH MUNICIPALITY WHICH THE
46 BOARD IN ITS DISCRETION FINDS TO HAVE AN INTEREST IN THE PROCEEDING
47 BECAUSE OF THE POTENTIAL ENVIRONMENTAL EFFECTS ON SUCH MUNICIPALITY OR
48 PERSON, IF THE MUNICIPALITY OR PERSON HAS FILED WITH THE BOARD A NOTICE
49 OF INTENT TO BECOME A PARTY, WITHIN FORTY-FIVE DAYS AFTER THE DATE GIVEN
50 IN THE PUBLISHED NOTICE AS THE DATE FOR FILING OF THE APPLICATION,
51 TOGETHER WITH AN EXPLANATION OF THE POTENTIAL ENVIRONMENTAL EFFECTS ON
52 SUCH MUNICIPALITY OR PERSON; AND
53 (O) SUCH OTHER PERSONS OR ENTITIES AS THE BOARD MAY AT ANY TIME DEEM
54 APPROPRIATE, WHO MAY PARTICIPATE IN ALL SUBSEQUENT STAGES OF THE
55 PROCEEDING.
S. 1180 13
1 2. THE DEPARTMENT SHALL DESIGNATE MEMBERS OF ITS STAFF WHO SHALL
2 PARTICIPATE AS A PARTY IN PROCEEDINGS UNDER THIS ARTICLE.
3 3. ANY PERSON MAY MAKE A LIMITED APPEARANCE IN THE PROCEEDING BY
4 FILING A STATEMENT OF HIS OR HER INTENT TO LIMIT HIS OR HER APPEARANCE
5 IN WRITING AT ANY TIME PRIOR TO THE COMMENCEMENT OF THE HEARING. ALL
6 PAPERS AND MATTERS FILED BY A PERSON MAKING A LIMITED APPEARANCE SHALL
7 BECOME PART OF THE RECORD. NO PERSON MAKING A LIMITED APPEARANCE SHALL
8 BE A PARTY OR SHALL HAVE THE RIGHT TO PRESENT ORAL TESTIMONY OR
9 CROSS-EXAMINE WITNESSES OR PARTIES.
10 4. THE BOARD MAY FOR GOOD CAUSE SHOWN, PERMIT A MUNICIPALITY OR OTHER
11 PERSON ENTITLED TO BECOME A PARTY UNDER SUBDIVISION ONE OF THIS SECTION,
12 BUT WHICH HAS FAILED TO FILE THE REQUISITE NOTICE OF INTENT WITHIN THE
13 TIME REQUIRED, TO BECOME A PARTY, AND TO PARTICIPATE IN ALL SUBSEQUENT
14 STAGES OF THE PROCEEDING.
15 S 167. CONDUCT OF HEARING. 1. (A) THE HEARING SHALL BE CONDUCTED IN AN
16 EXPEDITIOUS MANNER BY A PRESIDING EXAMINER APPOINTED BY THE DEPARTMENT.
17 AN ASSOCIATE HEARING EXAMINER SHALL BE APPOINTED BY THE DEPARTMENT OF
18 ENVIRONMENTAL CONSERVATION PRIOR TO THE DATE SET FOR COMMENCEMENT OF THE
19 PUBLIC HEARING. THE ASSOCIATE EXAMINER SHALL ATTEND ALL HEARINGS AS
20 SCHEDULED BY THE PRESIDING EXAMINER AND SHALL ASSIST THE PRESIDING EXAM-
21 INER IN INQUIRING INTO AND CALLING FOR TESTIMONY CONCERNING RELEVANT AND
22 MATERIAL MATTERS. THE CONCLUSIONS AND RECOMMENDATIONS OF THE ASSOCIATE
23 EXAMINER SHALL BE INCORPORATED IN THE RECOMMENDED DECISION OF THE
24 PRESIDING EXAMINER, UNLESS THE ASSOCIATE EXAMINER PREFERS TO SUBMIT A
25 SEPARATE REPORT OF DISSENTING OR CONCURRING CONCLUSIONS AND RECOMMENDA-
26 TIONS. IN THE EVENT THAT THE COMMISSIONER OF ENVIRONMENTAL CONSERVATION
27 ISSUES PERMITS PURSUANT TO FEDERALLY DELEGATED OR APPROVED AUTHORITY
28 UNDER THE FEDERAL CLEAN WATER ACT, THE FEDERAL CLEAN AIR ACT AND THE
29 FEDERAL RESOURCE CONSERVATION AND RECOVERY ACT, THE RECORD IN THE
30 PROCEEDING AND THE ASSOCIATE EXAMINER'S CONCLUSIONS AND RECOMMENDATIONS
31 SHALL, INSOFAR AS IS CONSISTENT WITH FEDERALLY DELEGATED OR APPROVED
32 ENVIRONMENTAL PERMITTING AUTHORITY, PROVIDE THE BASIS FOR THE DECISION
33 OF THE COMMISSIONER OF ENVIRONMENTAL CONSERVATION WHETHER OR NOT TO
34 ISSUE SUCH PERMITS.
35 (B) THE TESTIMONY PRESENTED AT A HEARING MAY BE PRESENTED IN WRITING
36 OR ORALLY. THE BOARD MAY REQUIRE ANY STATE AGENCY TO PROVIDE EXPERT
37 TESTIMONY ON SPECIFIC SUBJECTS WHERE ITS PERSONNEL HAVE THE REQUISITE
38 EXPERTISE AND SUCH TESTIMONY IS CONSIDERED NECESSARY TO THE DEVELOPMENT
39 OF AN ADEQUATE RECORD. ALL TESTIMONY AND INFORMATION PRESENTED BY THE
40 APPLICANT, ANY STATE AGENCY OR OTHER PARTY SHALL BE SUBJECT TO DISCOVERY
41 AND CROSS-EXAMINATION. A RECORD SHALL BE MADE OF THE HEARING AND OF ALL
42 TESTIMONY TAKEN AND THE CROSS-EXAMINATIONS THEREON. THE RULES OF
43 EVIDENCE APPLICABLE TO PROCEEDINGS BEFORE A COURT SHALL NOT APPLY. THE
44 PRESIDING EXAMINER MAY PROVIDE FOR THE CONSOLIDATION OF THE REPRESEN-
45 TATION OF PARTIES, OTHER THAN GOVERNMENTAL BODIES OR AGENCIES, HAVING
46 SIMILAR INTERESTS. IN THE CASE OF SUCH A CONSOLIDATION, THE RIGHT TO
47 COUNSEL OF ITS OWN CHOOSING SHALL BE PRESERVED TO EACH PARTY TO THE
48 PROCEEDING PROVIDED THAT THE CONSOLIDATED GROUP MAY BE REQUIRED TO BE
49 HEARD THROUGH SUCH REASONABLE NUMBER OF COUNSEL AS THE PRESIDING EXAMIN-
50 ER SHALL DETERMINE. APPROPRIATE REGULATIONS SHALL BE ISSUED BY THE BOARD
51 TO PROVIDE FOR PREHEARING DISCOVERY PROCEDURES BY PARTIES TO A PROCEED-
52 ING, CONSOLIDATION OF THE REPRESENTATION OF PARTIES, THE EXCLUSION OF
53 IRRELEVANT, REPETITIVE, REDUNDANT OR IMMATERIAL EVIDENCE, AND THE REVIEW
54 OF RULINGS BY PRESIDING EXAMINERS.
55 2. A COPY OF THE RECORD INCLUDING, BUT NOT LIMITED TO, TESTIMONY,
56 BRIEFS, E-MAILS AND HEARING TESTIMONY SHALL BE MADE AVAILABLE BY THE
S. 1180 14
1 BOARD WITHIN THIRTY DAYS FOR EXAMINATION BY THE PUBLIC, AND SHALL BE
2 MADE AVAILABLE ON THE DEPARTMENT'S WEBSITE.
3 3. THE CHAIR OF THE BOARD MAY ENTER INTO AN AGREEMENT WITH AN AGENCY
4 OR DEPARTMENT OF THE UNITED STATES HAVING CONCURRENT JURISDICTION OVER
5 ALL OR PART OF THE LOCATION, CONSTRUCTION, OR OPERATION OF A MAJOR ELEC-
6 TRIC GENERATING FACILITY SUBJECT TO THIS ARTICLE WITH RESPECT TO PROVID-
7 ING FOR JOINT PROCEDURES AND A JOINT HEARING OF COMMON ISSUES ON A
8 COMBINED RECORD, PROVIDED THAT SUCH AGREEMENT SHALL NOT DIMINISH THE
9 RIGHTS ACCORDED TO ANY PARTY UNDER THIS ARTICLE.
10 4. THE PRESIDING EXAMINER SHALL ALLOW TESTIMONY TO BE RECEIVED ON
11 REASONABLE AND AVAILABLE ALTERNATE LOCATIONS FOR THE PROPOSED FACILITY,
12 ALTERNATE ENERGY SUPPLY SOURCES AND DEMAND-REDUCING MEASURES, PROVIDED
13 NOTICE OF THE INTENT TO SUBMIT SUCH TESTIMONY SHALL BE GIVEN WITHIN SUCH
14 PERIOD AS THE BOARD SHALL PRESCRIBE BY REGULATION, WHICH PERIOD SHALL BE
15 NOT LESS THAN THIRTY NOR MORE THAN SIXTY DAYS AFTER THE COMMENCEMENT OF
16 THE HEARING. NEVERTHELESS, IN ITS DISCRETION, THE BOARD MAY THEREAFTER
17 CAUSE TO BE CONSIDERED OTHER REASONABLE AND AVAILABLE LOCATIONS FOR THE
18 PROPOSED FACILITY, ALTERNATE ENERGY SUPPLY SOURCES AND, WHERE APPROPRI-
19 ATE, DEMAND-REDUCING MEASURES.
20 5. NOTWITHSTANDING THE PROVISIONS OF SUBDIVISION FOUR OF THIS SECTION,
21 THE BOARD MAY MAKE A PROMPT DETERMINATION ON THE SUFFICIENCY OF THE
22 APPLICANT'S CONSIDERATION AND EVALUATION OF REASONABLE ALTERNATIVES TO
23 ITS PROPOSED TYPE OF MAJOR ELECTRIC GENERATING FACILITY AND ITS PROPOSED
24 LOCATION FOR THAT FACILITY, AS REQUIRED PURSUANT TO PARAGRAPH (B) OF
25 SUBDIVISION ONE OF SECTION ONE HUNDRED SIXTY-FOUR OF THIS ARTICLE,
26 BEFORE RESOLUTION OF OTHER ISSUES PERTINENT TO A FINAL DETERMINATION ON
27 THE APPLICATION; PROVIDED, HOWEVER, THAT ALL INTERESTED PARTIES HAVE
28 REASONABLE OPPORTUNITY TO QUESTION AND PRESENT EVIDENCE IN SUPPORT OF OR
29 AGAINST THE MERITS OF THE APPLICANT'S CONSIDERATION AND EVALUATION OF
30 SUCH ALTERNATIVES, AS REQUIRED PURSUANT TO PARAGRAPH (B) OF SUBDIVISION
31 ONE OF SECTION ONE HUNDRED SIXTY-FOUR OF THIS ARTICLE, SO THAT THE BOARD
32 IS ABLE TO DECIDE, IN THE FIRST INSTANCE, WHETHER THE APPLICANT'S
33 PROPOSAL IS PREFERABLE TO ALTERNATIVES.
34 S 168. BOARD DECISIONS. 1. THE BOARD SHALL MAKE THE FINAL DECISION ON
35 AN APPLICATION UNDER THIS ARTICLE FOR A CERTIFICATE OR AMENDMENT THERE-
36 OF, UPON THE RECORD MADE BEFORE THE PRESIDING EXAMINER, AFTER RECEIVING
37 BRIEFS AND EXCEPTIONS TO THE RECOMMENDED DECISION OF SUCH EXAMINER AND
38 TO THE REPORT OF THE ASSOCIATE EXAMINER, AND AFTER HEARING SUCH ORAL
39 ARGUMENT AS THE BOARD SHALL DETERMINE. EXCEPT FOR GOOD CAUSE SHOWN TO
40 THE SATISFACTION OF THE BOARD, A DETERMINATION UNDER SUBDIVISION FIVE OF
41 SECTION ONE HUNDRED SIXTY-SEVEN OF THIS ARTICLE THAT THE APPLICANT'S
42 PROPOSAL IS PREFERABLE TO ALTERNATIVES SHALL BE FINAL. SUCH A DETERMI-
43 NATION SHALL BE SUBJECT TO REHEARING AND REVIEW ONLY AFTER THE FINAL
44 DECISION ON AN APPLICATION IS RENDERED.
45 2. THE BOARD SHALL RENDER A DECISION UPON THE RECORD EITHER TO GRANT
46 OR DENY THE APPLICATION AS FILED OR TO CERTIFY THE FACILITY UPON SUCH
47 TERMS, CONDITIONS, LIMITATIONS OR MODIFICATIONS OF THE CONSTRUCTION OR
48 OPERATION OF THE FACILITY AS THE BOARD MAY DEEM APPROPRIATE. THE BOARD
49 SHALL ISSUE, WITH ITS DECISION, AN OPINION STATING IN FULL ITS REASONS
50 FOR ITS DECISION, INCLUDING A STATEMENT OF HOW THE DECISION IS CONSIST-
51 ENT WITH THE STATE ENERGY PLAN. THE BOARD SHALL ISSUE AN ORDER UPON THE
52 DECISION AND THE OPINION EMBODYING THE TERMS AND CONDITIONS THEREOF IN
53 FULL. FOLLOWING ANY REHEARING AND ANY JUDICIAL REVIEW OF THE BOARD'S
54 DECISION, THE BOARD'S JURISDICTION OVER AN APPLICATION SHALL CEASE,
55 PROVIDED, HOWEVER, THAT THE BOARD SHALL RETAIN JURISDICTION WITH RESPECT
56 TO THE AMENDMENT, SUSPENSION OR REVOCATION OF A CERTIFICATE. THE COMMIS-
S. 1180 15
1 SION SHALL MONITOR, ENFORCE AND ADMINISTER COMPLIANCE WITH ANY TERMS AND
2 CONDITIONS SET FORTH IN THE BOARD'S ORDER. THE BOARD MAY NOT GRANT A
3 CERTIFICATE FOR THE CONSTRUCTION OR OPERATION OF A MAJOR ELECTRIC GENER-
4 ATING FACILITY, EITHER AS PROPOSED OR AS MODIFIED BY THE BOARD, UNLESS
5 IT SHALL FIRST FIND AND DETERMINE:
6 (A) THAT THE FACILITY WILL SATISFY ADDITIONAL ELECTRIC CAPACITY NEEDS
7 OR OTHER ELECTRIC SYSTEM NEEDS, AND THAT THE CONSTRUCTION OF THE FACILI-
8 TY IS CONSISTENT WITH LONG-RANGE ENERGY PLANNING OBJECTIVES AND STRATE-
9 GIES, THE BOARD SHALL FIND AND DETERMINE THAT THE CONSTRUCTION OF THE
10 FACILITY IS REASONABLY CONSISTENT WITH THE POLICIES AND LONG-RANGE ENER-
11 GY PLANNING OBJECTIVES AND STRATEGIES CONTAINED IN THE MOST RECENT STATE
12 ENERGY PLAN, INCLUDING THAT THE ADDITIONAL ELECTRICITY PROVIDED BY THE
13 FACILITY AS PROPOSED IS NEEDED AND IS THE MOST EFFECTIVE OPTION FOR
14 RATEPAYERS, CONSIDERING REQUIRED CAPITAL INVESTMENT, COST, RATEPAYER
15 IMPACTS, SECURITY AND DIVERSITY OF FUEL SUPPLIES AND GENERATING MODES,
16 PROTECTION OF PUBLIC HEALTH AND SAFETY, ADVERSE AND BENEFICIAL ENVIRON-
17 MENTAL IMPACTS, CONSERVATION OF ENERGY AND ENERGY RESOURCES AND ANY
18 OTHER POLICY OBJECTIVES DEEMED APPROPRIATE, COMPARED TO ALL OTHER ALTER-
19 NATIVES, INCLUDING DEMAND REDUCTION OPTIONS, AND THAT THE LOCATION
20 PROPOSED FOR THE FACILITY IS IDENTIFIED AS A SUITABLE LOCATION FOR POWER
21 PLANT CONSTRUCTION;
22 (B) THE NATURE OF THE PROBABLE ENVIRONMENTAL IMPACTS, INCLUDING AN
23 EVALUATION OF THE PREDICTABLE ADVERSE AND BENEFICIAL IMPACTS ON THE
24 ENVIRONMENT AND ECOLOGY, PUBLIC HEALTH AND SAFETY, AESTHETICS, SCENIC,
25 HISTORIC AND RECREATIONAL VALUE, FOREST AND PARKS, AIR AND WATER QUALI-
26 TY, INCLUDING THE CUMULATIVE EFFECT OF AIR EMISSIONS FROM EXISTING AND
27 PROPOSED FACILITIES AND THE POTENTIAL FOR SIGNIFICANT DETERIORATION IN
28 LOCAL AIR QUALITY, WITH PARTICULAR ATTENTION TO FACILITIES LOCATED IN OR
29 NEAR AREAS DESIGNATED AS SEVERE NONATTAINMENT, FISH AND OTHER MARINE
30 LIFE AND WILDLIFE, OR LANDS INCLUDED IN THE STATE OPEN SPACE PLAN;
31 (C) THAT THE FACILITY (I) MINIMIZES ADVERSE ENVIRONMENTAL IMPACTS,
32 CONSIDERING THE STATE OF AVAILABLE TECHNOLOGY, THE NATURE AND ECONOMICS
33 OF SUCH REASONABLE ALTERNATIVES AS ARE REQUIRED TO BE EXAMINED PURSUANT
34 TO PARAGRAPH (F) OF SUBDIVISION ONE OF SECTION ONE HUNDRED SIXTY-SIX OF
35 THIS ARTICLE, THE INTEREST OF THE STATE WITH RESPECT TO AESTHETICS,
36 PRESERVATION OF HISTORIC SITES, FOREST AND PARKS, FISH AND WILDLIFE,
37 VIABLE AGRICULTURAL LANDS, AND OTHER PERTINENT CONSIDERATIONS, (II) IS
38 COMPATIBLE WITH PUBLIC HEALTH AND SAFETY, (III) WILL NOT BE IN CONTRA-
39 VENTION OF WATER QUALITY STANDARDS OR BE INCONSISTENT WITH APPLICABLE
40 REGULATIONS OF THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, OR IN CASE
41 NO CLASSIFICATION HAS BEEN MADE OF THE RECEIVING WATERS ASSOCIATED WITH
42 THE FACILITY, WILL NOT DISCHARGE ANY EFFLUENT THAT WILL BE UNDULY INJU-
43 RIOUS TO THE PROPAGATION AND PROTECTION OF FISH AND WILDLIFE, THE INDUS-
44 TRIAL DEVELOPMENT OF THE STATE, AND PUBLIC HEALTH AND PUBLIC ENJOYMENT
45 OF THE RECEIVING WATERS, (IV) WILL NOT EMIT ANY POLLUTANTS TO THE AIR
46 THAT WILL BE IN CONTRAVENTION OF APPLICABLE AIR EMISSION CONTROL
47 REQUIREMENTS OR AIR QUALITY STANDARDS, (V) WILL CONTROL THE RUNOFF AND
48 LEACHATE FROM ANY SOLID WASTE DISPOSAL FACILITY, AND (VI) WILL CONTROL
49 THE DISPOSAL OF ANY HAZARDOUS WASTE;
50 (D) WHERE APPLICABLE, THAT THE FACILITY POSSESSES ADEQUATE ON-SITE
51 PETROLEUM OR OTHER BACK-UP FUEL SUPPLY AND STORAGE TO ACCOMMODATE AND
52 MEET THE SUPPLY NEEDS OF THE FACILITY DURING PERIODS OF INTERRUPTION OF
53 ITS PRIMARY FUEL WHILE NOT DISRUPTING OR NEGATIVELY IMPACTING THE FUEL
54 SUPPLY AND DISTRIBUTION INDUSTRIES;
55 (E) THAT THE FACILITY IS DESIGNED TO OPERATE IN COMPLIANCE WITH APPLI-
56 CABLE STATE AND LOCAL LAWS AND REGULATIONS ISSUED THEREUNDER CONCERNING,
S. 1180 16
1 AMONG OTHER MATTERS, THE ENVIRONMENT, PUBLIC HEALTH AND SAFETY, ALL OF
2 WHICH SHALL BE BINDING UPON THE APPLICANT, EXCEPT THAT THE BOARD MAY
3 REFUSE TO APPLY ANY LOCAL ORDINANCE, LAW, RESOLUTION OR OTHER ACTION OR
4 ANY REGULATION ISSUED THEREUNDER OR ANY LOCAL STANDARD OR REQUIREMENT
5 WHICH WOULD BE OTHERWISE APPLICABLE IF IT FINDS THAT AS APPLIED TO THE
6 PROPOSED FACILITY SUCH IS UNREASONABLY RESTRICTIVE IN VIEW OF THE EXIST-
7 ING TECHNOLOGY OR THE NEEDS OF OR COSTS TO RATEPAYERS WHETHER LOCATED
8 INSIDE OR OUTSIDE OF SUCH MUNICIPALITY. THE BOARD SHALL PROVIDE THE
9 MUNICIPALITY AN OPPORTUNITY TO PRESENT EVIDENCE IN SUPPORT OF SUCH ORDI-
10 NANCE, LAW, RESOLUTION, REGULATION OR OTHER LOCAL ACTION ISSUED THERE-
11 UNDER;
12 (F) THAT THE CONSTRUCTION AND OPERATION OF THE FACILITY IS IN THE
13 PUBLIC INTEREST, CONSIDERING THE ENVIRONMENTAL AND HEALTH IMPACTS OF THE
14 FACILITY AND REASONABLE ALTERNATIVES EXAMINED AS REQUIRED PURSUANT TO
15 PARAGRAPH (B) OF SUBDIVISION ONE OF SECTION ONE HUNDRED SIXTY-FOUR OF
16 THIS ARTICLE; AND
17 (G) THAT THE FACILITY BASED ON INFORMATION PRESENTED PURSUANT TO
18 SUBPARAGRAPHS (I) AND (II) OF PARAGRAPH (B) OF SUBDIVISION ONE OF
19 SECTION ONE HUNDRED SIXTY-SIX OF THIS ARTICLE, AS PROPOSED DOES NOT
20 PLACE OR INCREASE AN ADDITIONAL ENVIRONMENTAL OR HEALTH BURDEN ON A
21 COMMUNITY THAT HAS A SIGNIFICANT LEVEL OF EMISSIONS GENERATED WITHIN THE
22 COMMUNITY AS COMPARED WITH THE COUNTY AVERAGE.
23 3. A COPY OF THE BOARD'S DECISION AND OPINION SHALL BE SERVED ON EACH
24 PARTY PERSONALLY OR BY MAIL.
25 S 169. OPINION TO BE ISSUED WITH DECISION. IN RENDERING A DECISION ON
26 AN APPLICATION FOR A CERTIFICATE, THE BOARD SHALL ISSUE AN OPINION STAT-
27 ING ITS REASONS FOR THE ACTION TAKEN. IF THE BOARD HAS FOUND THAT ANY
28 LOCAL ORDINANCE, LAW, RESOLUTION, REGULATION OR OTHER ACTION ISSUED
29 THEREUNDER OR ANY OTHER LOCAL STANDARD OR REQUIREMENT WHICH WOULD BE
30 OTHERWISE APPLICABLE IS UNREASONABLY RESTRICTIVE PURSUANT TO PARAGRAPH
31 (E) OF SUBDIVISION TWO OF SECTION ONE HUNDRED SIXTY-EIGHT OF THIS ARTI-
32 CLE, IT SHALL STATE IN ITS OPINION THE REASONS THEREFOR.
33 S 170. REHEARING AND JUDICIAL REVIEW. 1. ANY PARTY AGGRIEVED BY THE
34 BOARD'S DECISION DENYING OR GRANTING A CERTIFICATE MAY APPLY TO THE
35 BOARD FOR A REHEARING WITHIN THIRTY DAYS AFTER ISSUANCE OF THE AGGRIEV-
36 ING DECISION. ANY SUCH APPLICATION SHALL BE CONSIDERED AND DECIDED BY
37 THE BOARD AND ANY REHEARING SHALL BE COMPLETED AND A DECISION RENDERED
38 THEREON WITHIN NINETY DAYS OF THE EXPIRATION OF THE PERIOD FOR FILING
39 REHEARING PETITIONS, PROVIDED HOWEVER THAT THE BOARD MAY EXTEND THE
40 DEADLINE BY NO MORE THAN NINETY DAYS WHERE A REHEARING IS REQUIRED IF
41 NECESSARY TO DEVELOP AN ADEQUATE RECORD. THE APPLICANT MAY WAIVE SUCH
42 DEADLINE. THEREAFTER SUCH A PARTY MAY OBTAIN JUDICIAL REVIEW OF SUCH
43 DECISION AS PROVIDED IN THIS SECTION. A JUDICIAL PROCEEDING SHALL BE
44 BROUGHT IN THE APPELLATE DIVISION OF THE SUPREME COURT OF THE STATE OF
45 NEW YORK IN THE JUDICIAL DEPARTMENT EMBRACING THE COUNTY WHEREIN THE
46 FACILITY IS TO BE LOCATED OR, IF THE APPLICATION IS DENIED, THE COUNTY
47 WHEREIN THE APPLICANT HAS PROPOSED TO LOCATE THE FACILITY. SUCH PROCEED-
48 ING SHALL BE INITIATED BY THE FILING OF A PETITION IN SUCH COURT WITHIN
49 THIRTY DAYS AFTER THE ISSUANCE OF A FINAL DECISION BY THE BOARD UPON THE
50 APPLICATION FOR REHEARING TOGETHER WITH PROOF OF SERVICE OF A DEMAND ON
51 THE BOARD TO FILE WITH SAID COURT A COPY OF A WRITTEN TRANSCRIPT OF THE
52 RECORD OF THE PROCEEDING AND A COPY OF THE BOARD'S DECISION AND OPINION.
53 THE BOARD'S COPY OF SAID TRANSCRIPT, DECISION AND OPINION, SHALL BE
54 AVAILABLE AT ALL REASONABLE TIMES TO ALL PARTIES FOR EXAMINATION WITHOUT
55 COST. UPON RECEIPT OF SUCH PETITION AND DEMAND THE BOARD SHALL FORTH-
56 WITH DELIVER TO THE COURT A COPY OF THE RECORD AND A COPY OF THE BOARD'S
S. 1180 17
1 DECISION AND OPINION. THEREUPON, THE COURT SHALL HAVE JURISDICTION OF
2 THE PROCEEDING AND SHALL HAVE THE POWER TO GRANT SUCH RELIEF AS IT DEEMS
3 JUST AND PROPER, AND TO MAKE AND ENTER AN ORDER ENFORCING, MODIFYING AND
4 ENFORCING AS SO MODIFIED, REMANDING FOR FURTHER SPECIFIC EVIDENCE OR
5 FINDINGS OR SETTING ASIDE IN WHOLE OR IN PART SUCH DECISION. THE APPEAL
6 SHALL BE HEARD ON THE RECORD, WITHOUT REQUIREMENT OF REPRODUCTION, AND
7 UPON BRIEFS TO THE COURT. NO OBJECTION THAT HAS NOT BEEN URGED BY THE
8 PARTY IN HIS OR HER APPLICATION FOR REHEARING BEFORE THE BOARD SHALL BE
9 CONSIDERED BY THE COURT, UNLESS THE FAILURE OR NEGLECT TO URGE SUCH
10 OBJECTION SHALL BE EXCUSED BECAUSE OF EXTRAORDINARY CIRCUMSTANCES. THE
11 FINDINGS OF FACT ON WHICH SUCH DECISION IS BASED SHALL BE CONCLUSIVE IF
12 SUPPORTED BY SUBSTANTIAL EVIDENCE ON THE RECORD CONSIDERED AS A WHOLE
13 AND MATTERS OF JUDICIAL NOTICE SET FORTH IN THE OPINION. THE JURISDIC-
14 TION OF THE APPELLATE DIVISION OF THE SUPREME COURT SHALL BE EXCLUSIVE
15 AND ITS JUDGMENT AND ORDER SHALL BE FINAL, SUBJECT TO REVIEW BY THE
16 COURT OF APPEALS IN THE SAME MANNER AND FORM AND WITH THE SAME EFFECT AS
17 PROVIDED FOR APPEALS IN A SPECIAL PROCEEDING. ALL SUCH PROCEEDINGS SHALL
18 BE HEARD AND DETERMINED BY THE APPELLATE DIVISION OF THE SUPREME COURT
19 AND BY THE COURT OF APPEALS AS EXPEDITIOUSLY AS POSSIBLE AND WITH LAWFUL
20 PRECEDENCE OVER ALL OTHER MATTERS.
21 2. THE GROUNDS FOR AND SCOPE OF REVIEW OF THE COURT SHALL BE LIMITED
22 TO WHETHER THE DECISION AND OPINION OF THE BOARD ARE:
23 (A) IN CONFORMITY WITH THE CONSTITUTION, LAWS AND REGULATIONS OF THE
24 STATE AND THE UNITED STATES;
25 (B) SUPPORTED BY SUBSTANTIAL EVIDENCE IN THE RECORD AND MATTERS OF
26 JUDICIAL NOTICE PROPERLY CONSIDERED AND APPLIED IN THE OPINION;
27 (C) WITHIN THE BOARD'S STATUTORY JURISDICTION OR AUTHORITY;
28 (D) MADE IN ACCORDANCE WITH PROCEDURES SET FORTH IN THIS ARTICLE OR
29 ESTABLISHED BY RULE OR REGULATION PURSUANT TO THIS ARTICLE;
30 (E) ARBITRARY, CAPRICIOUS OR AN ABUSE OF DISCRETION; OR
31 (F) MADE TO ENSURE FAIR TREATMENT AND MEANINGFUL INVOLVEMENT OF ALL
32 PEOPLE REGARDLESS OF AGE, RACE, COLOR, NATIONAL ORIGIN AND INCOME.
33 3. EXCEPT AS HEREIN PROVIDED ARTICLE SEVENTY-EIGHT OF THE CIVIL PRAC-
34 TICE LAW AND RULES SHALL APPLY TO APPEALS TAKEN HEREUNDER.
35 S 171. JURISDICTION OF COURTS. EXCEPT AS EXPRESSLY SET FORTH IN
36 SECTION ONE HUNDRED SEVENTY OF THIS ARTICLE AND EXCEPT FOR REVIEW BY THE
37 COURT OF APPEALS OF A DECISION OF THE APPELLATE DIVISION OF THE SUPREME
38 COURT AS PROVIDED FOR THEREIN, NO COURT OF THIS STATE SHALL HAVE JURIS-
39 DICTION TO HEAR OR DETERMINE ANY MATTER, CASE OR CONTROVERSY CONCERNING
40 ANY MATTER WHICH WAS OR COULD HAVE BEEN DETERMINED IN A PROCEEDING UNDER
41 THIS ARTICLE OR TO STOP OR DELAY THE CONSTRUCTION OR OPERATION OF A
42 MAJOR ELECTRIC GENERATING FACILITY EXCEPT TO ENFORCE COMPLIANCE WITH
43 THIS ARTICLE OR THE TERMS AND CONDITIONS ISSUED THEREUNDER.
44 S 172. POWERS OF MUNICIPALITIES AND STATE AGENCIES. 1. NOTWITHSTAND-
45 ING ANY OTHER PROVISION OF LAW, NO STATE AGENCY, MUNICIPALITY OR ANY
46 AGENCY THEREOF MAY, EXCEPT AS EXPRESSLY AUTHORIZED UNDER THIS ARTICLE BY
47 THE BOARD, REQUIRE ANY APPROVAL, CONSENT, PERMIT, CERTIFICATE OR OTHER
48 CONDITION FOR THE CONSTRUCTION OR OPERATION OF A MAJOR ELECTRIC GENERAT-
49 ING FACILITY WITH RESPECT TO WHICH AN APPLICATION FOR A CERTIFICATE
50 HEREUNDER HAS BEEN FILED, OTHER THAN THOSE PROVIDED BY OTHERWISE APPLI-
51 CABLE STATE LAW FOR THE PROTECTION OF EMPLOYEES ENGAGED IN THE
52 CONSTRUCTION AND OPERATION OF SUCH FACILITY; PROVIDED, HOWEVER, THAT IN
53 THE CASE OF A MUNICIPALITY OR AN AGENCY THEREOF, SUCH MUNICIPALITY HAS
54 RECEIVED NOTICE OF THE FILING OF THE APPLICATION THEREFOR; AND PROVIDED
55 FURTHER, HOWEVER, THAT THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION
56 SHALL BE THE PERMITTING AGENCY FOR PERMITS ISSUED PURSUANT TO FEDERALLY
S. 1180 18
1 DELEGATED OR APPROVED AUTHORITY UNDER THE FEDERAL CLEAN WATER ACT, THE
2 FEDERAL CLEAN AIR ACT AND THE FEDERAL RESOURCE CONSERVATION AND RECOVERY
3 ACT. IN ISSUING SUCH PERMITS, THE COMMISSIONER OF ENVIRONMENTAL CONSER-
4 VATION SHALL FOLLOW PROCEDURES ESTABLISHED IN THIS ARTICLE TO THE EXTENT
5 THAT THEY ARE CONSISTENT WITH FEDERALLY DELEGATED OR APPROVED ENVIRON-
6 MENTAL PERMITTING AUTHORITY. THE COMMISSIONER OF ENVIRONMENTAL CONSERVA-
7 TION SHALL PROVIDE SUCH PERMITS TO THE BOARD PRIOR TO ITS DETERMINATION
8 WHETHER OR NOT TO ISSUE A CERTIFICATE. THE ISSUANCE BY THE DEPARTMENT
9 OF ENVIRONMENTAL CONSERVATION OF SUCH PERMITS SHALL IN NO WAY INTERFERE
10 WITH OR AFFECT THE REQUIRED REVIEW BY THE BOARD OF THE ANTICIPATED ENVI-
11 RONMENTAL AND HEALTH IMPACTS RELATING TO THE CONSTRUCTION AND OPERATION
12 OF THE FACILITY AS PROPOSED, OR ITS AUTHORITY TO DENY AN APPLICATION FOR
13 CERTIFICATION PURSUANT TO SECTION ONE HUNDRED SIXTY-EIGHT OF THIS ARTI-
14 CLE, AND, IN THE EVENT OF SUCH A DENIAL, ANY SUCH PERMITS SHALL BE
15 DEEMED NULL AND VOID.
16 2. THE ADIRONDACK PARK AGENCY SHALL NOT HOLD PUBLIC HEARINGS FOR A
17 MAJOR ELECTRIC GENERATING FACILITY WITH RESPECT TO WHICH AN APPLICATION
18 HEREUNDER IS FILED, PROVIDED THAT SUCH AGENCY HAS RECEIVED NOTICE OF THE
19 FILING OF SUCH APPLICATION.
20 S 173. APPLICABILITY TO PUBLIC AUTHORITIES. FOR PURPOSES OF THIS ARTI-
21 CLE, THE POWER AUTHORITY OF THE STATE OF NEW YORK, THE GREEN ISLAND
22 POWER AUTHORITY AND THE LONG ISLAND POWER AUTHORITY SHALL BE REQUIRED TO
23 APPLY ALL PROVISIONS OF THIS ARTICLE FOR MAJOR ELECTRIC GENERATING
24 FACILITIES WHICH EITHER AUTHORITY BUILDS OR CAUSES TO BE BUILT. FOR
25 GENERATING FACILITIES WHICH ARE NOT MAJOR ELECTRIC GENERATING FACILI-
26 TIES, NEITHER AUTHORITY SHALL BE PERMITTED TO SERVE AS LEAD AGENCY FOR
27 PURPOSES OF ENVIRONMENTAL REVIEW PURSUANT TO THE PROVISIONS OF THE ENVI-
28 RONMENTAL CONSERVATION LAW.
29 S 2. Section 1014 of the public authorities law, as amended by chapter
30 446 of the laws of 1972, is amended to read as follows:
31 S 1014. Public service law not applicable to authority; inconsistent
32 provisions in other acts superseded. The rates, services and practices
33 relating to the generation, transmission, distribution and sale by the
34 authority, of power to be generated from the projects authorized by this
35 title shall not be subject to the provisions of the public service law
36 nor to regulation by, nor the jurisdiction of the department of public
37 service. Except to the extent article seven of the public service law
38 applies to the siting and operation of a major utility transmission
39 facility as defined therein, AND ARTICLE TEN OF THE PUBLIC SERVICE LAW
40 APPLIES TO THE SITING OF A MAJOR ELECTRIC GENERATING FACILITY AS DEFINED
41 THEREIN, and except to the extent section eighteen-a of such law
42 provides for assessment of the authority for certain costs relating
43 thereto, the provisions of the public service law and of the conserva-
44 tion law and every other law relating to the department of public
45 service or the public service commission or to the ENVIRONMENTAL conser-
46 vation department or to the functions, powers or duties assigned to the
47 division of water power and control by chapter six hundred nineteen[,]
48 of the laws of nineteen hundred twenty-six, shall so far as is necessary
49 to make this title effective in accordance with its terms and purposes
50 be deemed to be superseded, and wherever any provision of law shall be
51 found in conflict with the provisions of this title or inconsistent with
52 the purposes thereof, it shall be deemed to be superseded, modified or
53 repealed as the case may require.
54 S 3. Paragraph c of subdivision 8 of section 1020-c of the public
55 authorities law, as amended by chapter 7 of the laws of 1987, is amended
56 to read as follows:
S. 1180 19
1 c. Article seven of the public service law shall apply to the authori-
2 ty's siting and operation of a major transmission facility as therein
3 defined and article [eight] TEN of the public service law shall apply to
4 the authority's siting and operation of a major [steam] electric gener-
5 ating facility as therein defined.
6 S 4. Section 1020-s of the public authorities law, as added by chapter
7 517 of the laws of 1986, is amended to read as follows:
8 S 1020-s. Public service law generally not applicable to authority;
9 inconsistent provisions in certain other acts superseded. 1. The rates,
10 services and practices relating to the electricity generated by facili-
11 ties owned or operated by the authority shall not be subject to the
12 provisions of the public service law or to regulation by, or the juris-
13 diction of, the public service commission, except to the extent (a)
14 article seven of the public service law applies to the siting and opera-
15 tion of a major utility transmission facility as defined therein, (b)
16 article [eight] TEN of such law applies to the siting of a MAJOR ELEC-
17 TRIC generating facility as defined therein, and (c) section eighteen-a
18 of such law provides for assessment for certain costs, property or oper-
19 ations.
20 2. The issuance by the authority of its obligations to acquire the
21 securities or assets of LILCO shall be deemed not to be "state action"
22 within the meaning of the state environmental quality review act, and
23 such act shall not be applicable in any respect to such acquisition or
24 any action of the authority to effect such acquisition.
25 S 5. The state finance law is amended by adding a new section 97-kkkk
26 to read as follows:
27 S 97-KKKK. INTERVENOR ACCOUNT. 1. THERE IS HEREBY ESTABLISHED IN THE
28 JOINT CUSTODY OF THE STATE COMPTROLLER AND THE COMMISSIONER OF TAXATION
29 AND FINANCE AN ACCOUNT TO BE KNOWN AS THE INTERVENOR ACCOUNT.
30 2. SUCH ACCOUNT SHALL CONSIST OF ALL REVENUES RECEIVED FROM SITING
31 APPLICATION FEES FOR ELECTRIC GENERATING FACILITIES PURSUANT TO SECTIONS
32 ONE HUNDRED SIXTY-THREE AND ONE HUNDRED SIXTY-FOUR OF THE PUBLIC SERVICE
33 LAW.
34 3. MONEYS OF THE ACCOUNT, FOLLOWING APPROPRIATION BY THE LEGISLATURE,
35 MAY BE EXPENDED IN ACCORDANCE WITH THE PROVISIONS OF SECTIONS ONE
36 HUNDRED SIXTY-THREE AND ONE HUNDRED SIXTY-FOUR OF THE PUBLIC SERVICE
37 LAW. MONEYS SHALL BE PAID OUT OF THE ACCOUNT ON THE AUDIT AND WARRANT OF
38 THE STATE COMPTROLLER ON VOUCHERS CERTIFIED OR APPROVED BY THE CHAIR OF
39 THE PUBLIC SERVICE COMMISSION.
40 S 6. The environmental conservation law is amended by adding a new
41 section 19-0312 to read as follows:
42 S 19-0312. POWER PLANT EMISSIONS AND PERFORMANCE STANDARDS.
43 1. DEFINITIONS. AS USED IN THIS SECTION:
44 A. "MERCURY" MEANS ELEMENTAL MERCURY AND ANY COMPOUND CONTAINING
45 MERCURY.
46 B. "MAJOR ELECTRIC GENERATING FACILITY" MEANS ANY ELECTRICITY GENERAT-
47 ING FACILITY WITH A NAMEPLATE CAPACITY OF TWENTY THOUSAND KILOWATTS OR
48 MORE.
49 C. "ANNUAL MERCURY EMISSIONS RATE" MEANS THE POUNDS OF MERCURY EMITTED
50 BY MAJOR ELECTRIC GENERATING FACILITIES IN A GIVEN CALENDAR YEAR DIVIDED
51 BY THE TOTAL MEGAWATTS GENERATED IN A CALENDAR YEAR, USING METHODOLOGY
52 SET FORTH IN PARAGRAPH F OF SUBDIVISION TWO OF THIS SECTION.
53 2. A. NO LATER THAN JANUARY FIRST, TWO THOUSAND TWELVE, THE COMMIS-
54 SIONER SHALL PROMULGATE RULES AND REGULATIONS SUCH THAT A MAJOR ELECTRIC
55 GENERATING FACILITY CONSTRUCTED AFTER THE EFFECTIVE DATE OF THIS SECTION
S. 1180 20
1 SHALL EMIT NO MORE THAN 1.3 POUNDS PER MEGAWATT HOUR OF TOTAL NITROGEN
2 OXIDE EMISSIONS BY MAY FIRST, TWO THOUSAND TWELVE.
3 B. NO LATER THAN JANUARY FIRST, TWO THOUSAND TWELVE, THE COMMISSIONER
4 SHALL PROMULGATE RULES AND REGULATIONS LIMITING THE AMOUNT OF TOTAL
5 SULFUR DIOXIDE EMITTED BY MAJOR ELECTRIC GENERATING FACILITIES
6 CONSTRUCTED AFTER THE EFFECTIVE DATE OF THIS SECTION.
7 C. NO LATER THAN JANUARY FIRST, TWO THOUSAND TWELVE, THE COMMISSIONER
8 SHALL PROMULGATE RULES AND REGULATIONS IMPLEMENTING REDUCTIONS IN EMIS-
9 SIONS OF CARBON DIOXIDE IN ACCORDANCE WITH THE PROVISIONS OF THIS
10 SECTION. THE COMMISSIONER SHALL DEVELOP A MECHANISM FOR MAJOR ELECTRIC
11 GENERATING FACILITIES CONSTRUCTED AFTER THE EFFECTIVE DATE OF THIS
12 SECTION TO COMPLY BASED ON AN EMISSIONS PERFORMANCE STANDARD EXPRESSED
13 IN POUNDS OF POLLUTANT EMITTED PER MEGAWATT HOUR GENERATED.
14 D. UPON THE EFFECTIVE DATE OF THIS SECTION, THE COMMISSIONER SHALL SET
15 A PERMANENT CAP ON THE TOTAL AMOUNT OF CARBON DIOXIDE EMITTED BY ALL
16 FOSSIL FUEL-FIRED ELECTRICITY GENERATING UNITS HAVING A RATED CAPACITY
17 EQUAL TO OR GREATER THAN TWENTY-FIVE THOUSAND KILOWATTS THAT IS EQUAL TO
18 64,310,805 SHORT TONS AND BEGINNING JANUARY FIRST, TWO THOUSAND SIXTEEN,
19 SUCH CAP SHALL BE REDUCED BY TWO AND ONE-HALF PERCENT OF SAID AMOUNT PER
20 YEAR FOR FOUR CONSECUTIVE YEARS.
21 E. THE COMMISSIONER MAY ESTABLISH OR EMPLOY AN EMISSIONS CREDIT TRAD-
22 ING MECHANISM TO FACILITATE COMPLIANCE WITH CARBON DIOXIDE REQUIREMENTS.
23 F. BY JANUARY FIRST, TWO THOUSAND TWELVE, THE COMMISSIONER SHALL
24 PROMULGATE RULES AND REGULATIONS THAT PROVIDE A METHODOLOGY FOR DETER-
25 MINING THE ANNUAL MERCURY EMISSIONS RATE, MEASURED IN POUNDS PER MEGA-
26 WATT, FROM MAJOR ELECTRIC GENERATING FACILITIES IN THIS STATE.
27 G. THE COMMISSIONER SHALL PROMULGATE, NO LATER THAN JANUARY FIRST, TWO
28 THOUSAND TWELVE, RULES AND REGULATIONS SUCH THAT A MAJOR ELECTRIC GENER-
29 ATING FACILITY CONSTRUCTED AFTER THE EFFECTIVE DATE OF THIS SECTION
30 SHALL EMIT NO MORE THAN 2.5 POUNDS PER MEGAWATT HOUR OF TOTAL MERCURY
31 EMISSIONS BY JANUARY FIRST, TWO THOUSAND THIRTEEN.
32 3. THE EMISSION RATES, LIMITATIONS, AND PRACTICES REQUIRED BY THIS
33 SECTION SHALL NOT BE CONSTRUED TO SUPERSEDE MORE STRINGENT EMISSION
34 RATES, LIMITATIONS, AND PRACTICES THAT ARE APPLICABLE ON THE EFFECTIVE
35 DATE OF THIS SECTION OR MAY BECOME APPLICABLE AFTER SUCH EFFECTIVE DATE.
36 S 7. Severability. If any clause, sentence, paragraph, section or part
37 of this act shall be adjudged by any court of competent jurisdiction to
38 be invalid, such judgment shall not affect, impair or invalidate the
39 remainder thereof, but shall be confined in its operation to the clause,
40 sentence, paragraph, section or part thereof directly involved in the
41 controversy in which such judgment shall have been rendered.
42 S 8. This act shall take effect immediately and shall expire and be
43 deemed repealed December 31, 2021; and provided that nothing in this act
44 shall be construed to limit any administrative authority, with respect
45 to matters included in this act, which existed prior to the effective
46 date of this act.
